The Juridification of Politics

In The Oxford Handbook of Law and Anthropology, edited by Marie-Claire Foblets, Mark Goodale, María Sapignoli, and Olaf Zenker

This chapter reviews the principal debates on the juridification of politics, discussing anthropological analysis of the juridification of Indigenous politics. While much of the broader debate refers principally to the diffusion and vernacularization of state and international law, and the subjectivities generated by engagements with dominant norms and institutions, here I turn the lens on the complex dialectics involved in Indigenous Peoples’ juridification of their own forms of law or what in Spanish is referred to as derecho propio. Drawing on my ethnographic work in Guatemala, I trace the different ways in which Mayan rights activists and their allies have analyzed, systematized, and defended their own forms of law in the context of battles for state recognition of legal pluralism in the post-war period. I point to the potentialities inherent in the juridification of Mayan law, arguing that different legal engagements can be read as exchanges that also contain and transmit a politics of what Audra Simpson (2015) has termed ‘indigenous refusal’. 

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“To speak the law”: Contested jurisdictions, legal legibility and sovereignty in Guatemala

Indigenous claims “to speak the law” in Guatemala extend far beyond late-twentieth-century statist proposals for multicultural legal orders based on recognition of legal pluralism. Drawing on collaborative research with the Indigenous Mayoralty of Santa Cruz del Quiché and examination of public debates in the media, this article analyzes attempts to ensure the legibility of Indigenous law, including disputes over constitutional reforms in 2016 and 2017. It suggests how different conceptual framings shape methodological approaches and representations of law. While opponents of Indigenous jurisdiction frame Mayan law as violent and illegal, and thus radically incommensurable with the national legal order, for Indigenous authorities “speaking the law” is not about seeking recognition from the nation-state. Rather, “speaking the law” is about communitarian forms of sovereignty and legality rooted in Mayan languages and cosmologies. Countering racialized tropes, Mayan authorities’ representations allude to understandings of justice and forms of legitimacy that existed prior to the sovereign state and national and international laws. In this way, they highlight not only the historical violence of the Guatemalan state but also the foundational violence of law itself, pointing to temporalities and ontologies of justice beyond modernist legal frames.

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PoLAR – Political and Legal Anthropology Review, Vol. 43 (2), 2020.

Revisiting the Judicialization of Politics in Latin America

This review essay analysis advances in the study of law and politics in Latin America, discussing five recent books that contribute to bridging the gap between the literature on judicial behavior, which tended to focus quite narrowly on intra-court dynamics and factors including institutional design and the interests and motivations of judges, and the judicial politics literature, which emphasizes factors external to courts, such as processes of socio-legal mobilization, “rights revolutions”, and the transformation of social and political conflicts into legal disputes. It argues that renewed interdisciplinary debates in the study of law and politics are leading to richer and more complex explanations of legal behavior and legal change.

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Latin American Research Review (LARR), Vol. 55 (1), 2020: 159-167.

Acceso a la justicia para mujeres indígenas en Guatemala: Casos paradigmáticos, estrategias de judicialización y jurisprudencia emergente

This publication in Spanish is the result of a collaborative research project with Nim Ajpu, the Association of Mayan  Lawyers of Guatemala, that aims to offer analytical tools for ancestral authorities and state justice operators about how to approach cases of violations of indigenous women’s rights, adopting a perspective that takes into account intersecting forms of structural and interpersonal, public and private violence. Analyzing four paradigmatic cases, two heard in national courts and two processed by indigenous justice, I examine the extent to which the different strategies of accompaniment, framing, litigation or adjudication, and the legal reasoning expressed in the jurisprudence of both state and indigenous justice took the intersection of individual and collective rights of indigenous women into account.

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Routledge Handbook of Law and Society in Latin America

An understanding of law and its efficacy in Latin America demands concepts distinct from the hegemonic notions of “rule of law” which have dominated debates on law, politics and society, and that recognize the diversity of situations and contexts characterizing the region. The Handbook presents cutting-edge analysis of the central theoretical and applied areas of enquiry in socio-legal studies in the region by leading figures in the study of law and society from Latin America, North America and Europe. Contributors argue that scholarship about Latin America has made vital contributions to longstanding and emerging theoretical and methodological debates on the relationship between law and society. Key topics examined include: the gap between law-on-the-books and law in action; the implications of legal pluralism and legal globalization; the legacies of experiences of transitional justice; emerging forms of socio-legal and political mobilization; debates concerning the relationship between the legal and the illegal. The Routledge Handbook of Law and Society in Latin America sets out new research agendas for cross-disciplinary socio-legal studies and will be of interest to those studying law, sociology of law, comparative Latin American politics, legal anthropology and development studies.

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(2019) ed. with Karina Ansolabehere and Tatiana Alfonso. Routledge Handbook of Law and Society in Latin America. Routledge. ISBN: 978-1138184459

Exigiendo justicia y seguridad: Mujeres indígenas y pluralidades legales en América Latina

Across Latin America, indigenous women are organizing to challenge racial, gender, and class discrimination through the courts. Collectively, by engaging with various forms of law, they are forging new definitions of what justice and security mean within their own contexts and struggles. They have challenged racism and the exclusion of indigenous people in national reforms, but also have challenged ‘bad customs’ and gender ideologies that exclude women within their own communities. Featuring chapters on Bolivia, Colombia, Ecuador, Guatemala, and Mexico, the contributors to Demanding Justice and Securityinclude both leading researchers and community activists. From Kichwa women in Ecuador lobbying for the inclusion of specific clauses in the national constitution that guarantee their rights to equality and protection within indigenous community law, to Me’phaa women from Guerrero, Mexico, battling to secure justice within the Inter-American Court of Human Rights for violations committed in the context of militarizing their home state, this book is a must-have for anyone who wants to understand the struggle of indigenous women in Latin America.

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(2017) ed., Exigiendo justicia y seguridad: Mujeres indígenas y pluralidades legales en América Latina, CIESAS, México. ISBN: 978-607-486-445

Demanding Justice and Security: Indigenous Women and Legal Pluralities in Latin America

Across Latin America, indigenous women are organizing to challenge racial, gender, and class discrimination through the courts. Collectively, by engaging with various forms of law, they are forging new definitions of what justice and security mean within their own contexts and struggles. They have challenged racism and the exclusion of indigenous people in national reforms, but also have challenged ‘bad customs’ and gender ideologies that exclude women within their own communities. Featuring chapters on Bolivia, Colombia, Ecuador, Guatemala, and Mexico, the contributors to Demanding Justice and Security include both leading researchers and community activists. From Kichwa women in Ecuador lobbying for the inclusion of specific clauses in the national constitution that guarantee their rights to equality and protection within indigenous community law, to Me’phaa women from Guerrero, Mexico, battling to secure justice within the Inter-American Court of Human Rights for violations committed in the context of militarizing their home state, this book is a must-have for anyone who wants to understand the struggle of indigenous women in Latin America. (Rutgers University Press, 2017)

Rutgers University Press

(2017) ed. Demanding Justice and Security: Indigenous Women and Legal Pluralities in Latin America. Rutgers University Press: New Brunswick, N.J. ISBN: 978-0-8135-8792-9

Justicia de Género y Pluralidades Legales: Perspectivas Latinoamericanas y Africanas

Justiciadegenero2014

This volume explores the relationships between legal pluralities and gender justices and injustices. Instead of asking whether they are “good” or “bad” for women, we understand legal pluralities as a social fact and analyse the way demands for gender rights are presented and responded to in different legal and quasi-legal settings. Case studies from Africa and Latin America critically explore the ways in which groups and individuals appeal to norms, instruments, processes and legal discourses to combat gender exclusion and marginalization.

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CIESAS 2014, México. ISBN: 978-607-486-264-5

Justicias Indígenas y Estado: Violencias Contemporáneas

Justicias IndigenasThis edited volume critically analyzes multicultural neoliberal policies in the field of justice with relation to indigenous peoples in Mexico and Guatemala over the last decade. Different case studies theorize the new state configurations that articulate multicultural justice policies with current policies of national security and criminal justice reform, considering the challenges and dangers these configurations represent for indigenous peoples. From diverse ethnographic contexts, the authors document the imaginaries and understandings that are disputed within indigenous justice and tensions with state jurisdiction, illustrating the extent and limits of indigenous autonomies in the margins of the state. The authors reveal the realities of law in practice, emphasizing the perspective of indigenous actors and the ways they resignify the spaces of law and rights.

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Dos Justicias: Coordinación Interlegal e Intercultural en Guatemala

Dos JusticiasThis book was produced in a collaboration between the authors, the Indigenous Mayoralty of Santa Cruz del Quiché, and other indigenous authorities in the municipality. In the text “Promesas y peligros de la coordinación: Derecho indígena, inseguridad y la búsqueda de justicia en Guatemala” I reflect on different aspects of debates and practices around interlegal coordination in Guatemala, setting them in the current Latin American context. In “Video comunitario y coordinación jurídica en Quiché”, Carlos Y. Flores analyzes the role that the appropriation and circulation of audiovisual materials by k’iche’ communities plays in Mayan law. The book is accompanied by a DVD of the film “Dos Justicias: los retos de la coordinación”, which documents a paradigmatic case of coordination between the Mayan legal system and the official state justice system that was filmed by members of the community and later edited and complemented with additional materials,

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Gender Justice & Legal Pluralities: Latin American & African Perspectives

Portada del libroThe effect of plural legal systems on gender justice is an emerging area of research and policy concern. It is generally agreed that legal pluralities play an important role in determining women’s livelihood options in many developing countries, yet there is surprising little consolidated research examining the relationship between these and the prospects for greater gender justice. This volume presents the results of a three year research project coordinated by the Chr. Michelsen Institute, Bergen, and CIESAS Mexico, which considers the impact of legal pluralities on gender justice and women’s rights. Individual chapters explore the relationship between legal pluralities and gender justice and injustice through a range of country cases from Africa and Latin America, including Sudan, Tanzania, South Africa, Zimbabwe, Mexico, Guatemala and Bolivia. By examining the different ways in which legal norms, instruments and discourses are being used to challenge or reinforce gendered forms of exclusion, the volume aims to generate new knowledge about the dynamics at play between contemporary contexts of legal pluralities and the struggles for gender justice.

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The Judicialization of Politics in Latin America


During the last two decades the judiciary has come to play an increasingly important political role in Latin America. Constitutional courts and supreme courts are more active in counterbalancing executive and legislative power than ever before. At the same time, the lack of effective citizenship rights has prompted ordinary people to press their claims and secure their rights through the courts. This collection of essays analyzes the diverse manifestations of the judicialization of politics in contemporary Latin America, assessing their positive and negative consequences for state-society relations, the rule of law, and democratic governance in the region. With individual chapters exploring Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Peru and Venezuela, it advances a comparative framework for thinking about the nature of the judicialization of politics within contemporary Latin American democracies.

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(2009) ed. with Line Schjolden and Alan Angell. The Judicialization of Politics in Latin America, Palgrave Macmillan. New York, 2nd ed.

Vergüenza: Autoridad, Autonomía y Derecho Indígena en la Guatemala de Posguerra

Across Latin America, debates and practice around indigenous law provide a window on shifting relations between indigenous movements, states, and international actors. In Guatemala, the practice of indigenous law is a reflection of cultural difference, a response to past and present violence, and a resource for a population denied access to justice. In the postwar period, indigenous law has become a central element of contemporary Mayan identity politics. Together with the policy shift toward state-endorsed multiculturalism, this has meant it has become a highly contested and politicized terrain. This article examines attempts by indigenous activists to ‘‘recuperate’’ and strengthen indigenous law – or what is now termed ‘‘Mayan law’’ (derecho Maya) – in Santa Cruz del Quiché, Guatemala. Analysing the tensions between local demands, the Mayan movement, international NGOs and intergovernmental bodies, and the Guatemalan state, it reflects on what they reveal about the limits and contradictions of the multicultural model of justice promoted since the end of the armed conflict.

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(2011) with Carlos Y. Flores. Autoridad, autonomía y derecho indígena en la Guatemala de posguerra. Guatemala: F&G Editores-Casa Comal-UAEM. ISBN: 978-9929-552-29-6

Cultures of Legality: Judicialization & Political Activism in Latin America

culturesoflegality

Ideas about law are undergoing dramatic change in Latin America. The consolidation of democracy as the predominant form of government and the proliferation of transnational legal instruments have ushered in an era of new legal conceptions and practices. Law has become a core focus of political movements and policy-making. This volume explores the changing legal ideas and practices that accompany, cause, and are a consequence of the judicialization of politics in Latin America. It is the product of a three-year research effort sponsored by the Law and Society Association, the Latin American Studies Association, and the Ford Foundation, which gathered leading and emerging scholars of Latin American courts from across disciplines and across continents.

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(2010) ed. with Javier Couso and Alex Huneeus. Cultures of Legality: Judicialization and Political Activism in Latin America. Cambridge University Press. ISBN: 978-0-521-76723-1

La Judicialización de la Política en América Latina

Forros La JudicializaciónDuring the last two decades the judiciary has come to play an increasingly important political role in Latin America. Constitutional courts and supreme courts are more active in counterbalancing executive and legislative power than ever before. At the same time, the lack of effective citizenship rights has prompted ordinary people to press their claims and secure their rights through the courts. This collection of essays analyzes the diverse manifestations of the judicialization of politics in contemporary Latin America, assessing their positive and negative consequences for state-society relations, the rule of law, and democratic governance in the region. With individual chapters exploring Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Peru and Venezuela, it advances a comparative framework for thinking about the nature of the judicialization of politics within contemporary Latin American democracies.

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Multiculturalism in Latin America: Indigenous Rights, Diversity & Democracy

During the last 15 years Latin American governments reformed their constitutions to recognize indigenous rights. The contributors to this book argue that these changes pose fundamental challenges to accepted notions of democracy, citizenship, and development in the region. Using case studies from Mexico, Guatemala, Bolivia, and Peru, they analyze the ways in which new legal frameworks have been implemented, appropriated and contested within a wider context of accelerating economic and legal globalization, highlighting the key implications for social policy, human rights, and social justice.

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(2002) ed., Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy, Palgrave Press, Basingstoke and London. ISBN: 0-333-71476-8

The Rule of Law in Latin America: The International Promotion of Judicial Reform

During the last fifteen years over a billion dollars of foreign aid have been spent to support judicial reform processes in Latin America’s fragile democracies. This volume analyses the logic and effects of current international donor efforts to support legal reform across the region. The contributors examine the ways in which international organisations develop and implement their reform agendas, critically analysing the strengths and weaknesses of contemporary approaches. In recent years donors have increasingly emphasised the need to ensure greater civil society involvement in judicial reform. How successful are these approaches in securing greater access to justice and accountability? And how are such efforts linked to broader processes of regime consolidation?

 

(2001) ed. with Pilar Domingo, Promoting the Rule of Law: Perspectives on Latin America, Institute of Latin American Studies, London. ISBN: 1900039-39-7

Guatemala After the Peace Accords

 

On 29 December 1996 the Guatemalan government of Alvaro Arzú Irygoyen and the Unidad Nacional Revolucionaria Guatemalteca (URNG) signed a comprehensive peace agreement bringing an end to over three decades of internal armed conflict. The essays in this volume were first presented at a conference held at the Institute of Latin American Studies, University of London, in November 1997.

 

 

 

(1998) ed., Guatemala After the Peace Accords, Institute of Latin American Studies, London.
ISBN: 1900039-26-5

Customary Law and Democratic Transition in Guatemala

Customary LawThis paper examines issues of democratic transition, legal reform and customary law, focusing on the case of Guatemala. The Accord on the Identity and Rights of Indigenous Peoples, signed by the Guatemalan government and the URNG (Unidad Revolucionaria Nacional Guatemalteca) in March 1995 as part of the peace process, commits the government to incorporating the customary law of the country’s indigenous Maya population into the design of the state via legal reforms. Here the importance of customary law for democratic transition in Guatemala is emphasised and a critical perspective for its study and analysis in this context developed. The second half of the paper presents preliminary results of a study in the department of Alta Verapaz applying the methodological approach proposed here.


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(1997) Customary Law and Democratic Transition in Guatemala, Institute of Latin American Studies, London. ISBN: 1900039-11-7

Derecho Consuetudinario y Transición Democrática en Guatemala

Derecho consuetudinario y transición democrática copyThis paper examines issues of democratic transition, legal reform and customary law, focusing on the case of Guatemala. The Accord on the Identity and Rights of Indigenous Peoples, signed by the Guatemalan government and the URNG (Unidad Revolucionaria Nacional Guatemalteca) in March 1995 as part of the peace process, commits the government to incorporating the customary law of the country’s indigenous Maya population into the design of the state via legal reforms. Here the importance of customary law for democratic transition in Guatemala is emphasised and a critical perspective for its study and analysis in this context developed. The second half of the paper presents preliminary results of a study in the department of Alta Verapaz applying the methodological approach proposed here.

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Negotiating Rights: The Guatemalan Peace Process

The signing of peace agreements in 1996 ended 36 years of civil war between the Guatemalan government and the Marxist rebel army, Guatemalan National Revolutionary Unit. The peace process went beyond an arrangement between armed groups, allowing regional and civic actors to advance their concerns on issues of social justice, political power-sharing and the rule of law. Accord issue 2 analyses the degree to which deep-seated historical grievances about unfair land distribution, the marginalisation of indigenous people, tight controls on political organisation and unacceptable state violence became marginalised during the process, and the remaining challenges in consolidating the peace agreement. Written by local and international authors, the publication also includes a timeline of the peace process, the full peace accord texts and profiles of the main people and institutions involved.

Download PDF | Negotiating Rights: The Guatemala Peace Process

(1997) ed. with Jeremy Armon and Richard Wilson, Negotiating Rights: The Guatemalan Peace Process, Accord-Conciliation Resources, London. ISSN: 1365-0742

Anthropology and Law in Latin America Towards Transformative Collaborations?

Part of a forum “Does Anthropology Matter to Law”, I argue that as a researcher working within the field of collaborative or ‘engaged’ legal and political anthropology in Latin America, law does very much shape my research agenda and that of most of my colleagues. I also contend that anthropology does impact law throughout the region, although to a much lesser extent. This is most evident in the legalisation, judicialisation and juridification of indigenous peoples’ collective rights to autonomy and territory in recent decades. Yet, the influence of anthropology on legal adjudication in the region is not only limited to issues pertaining to indigenous peoples: engaged applied ethnographic research is playing an increasingly important role in revealing to legal practitioners and courts the effects of human rights violations in specific contexts, and victims’ perceptions of the continuums of violence to which they are subjected.

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Journal of Legal Anthropology, 2018, Vol.19 (3): 79-85. ISSN: 1758-9584

Indigenous sovereignties in Guatemala: Between Criminalization and Revitalization

 

This article reviews the current challenges for indigenous ancestral authorities in Guatemala, signaling the tensions between the strengthening of indigenous authorities and their exercise of autonomy, and their criminalization by the government and the private sector, which aims to defend violent colonial dispossession.

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(2017) “Indigenous Sovereignties in Guatemala: Between Criminalization and Revitalization”, NACLA Report on the Americas, Vol.49, No. 3: 370-372. ISSN: 1071-4839.

The Moderating Influence of International Courts on Social Movements: Evidence from the IVF Case Against Costa Rica

Feminists and religious conservatives across the globe have increasingly turned to courts in their battles over abortion. Yet while a significant literature analyzes legal mobilization on abortion issues, it tends to focus predominantly on domestic scenarios. In this article we consider the effects of this contentious engagement of pro-choice and anti-abortion movements in international human rights fora, asking what happens to social movement claims when they reach international human rights courts. Through detailed description of a single case we explore the nature of contentious engagement in the international legal arena and its relation to social movement claims. The selected case study is Gretel Artavia Murillo et al. v. Costa Rica, decided by the Inter-American Court of Human Rights in 2012 but with ongoing repercussions for abortion rights, given its authoritative interpretation of embryonic right to life. Through our analysis of Artavia Murillo, we show how legal mobilization before international human rights courts moderates social movement claims within the legal arena, as rivals respond to each other and argue within the frame of courts’ norms and language.

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(2017) with Julieta Lemaitre, “The Moderating Influence of International Courts on Social Movements: Evidence from the IVF Case Against Costa Rica”, Health and Human Rights, Vol.19 (1): 149-160.

Women and Legal Pluralism: Lessons from Indigenous Governance Systems in the Andes

The shift towards legally plural multicultural and pluri-national citizenship regimes in the Andes formally recognised indigenous peoples’ community-based governance systems. These tend to emphasise participation, deliberation and service to the collective, but are often criticised for discriminating against women. We argue that recent constitutional reforms and legislation combining recognition of collective rights claims with institutional guarantees for gender equality have in fact amplified indigenous women’s different strategies of ‘negotiating with patriarchy’, allowing them to further the transformation of their organisations and ‘custom’. Such strategies are necessary because of the intersections of race, class and gendered exclusions that indigenous women experience, and possible because of the diverse and dynamic nature of community governance systems. Despite systemic and structural constraints on the guarantee of indigenous peoples’ rights, the actions of organised indigenous women over the last two decades point to new ways of imagining more plural, less patriarchal forms of citizenship.

Journal of Latin American Studies

(2017) with Anna Barrera, “Women and Legal Pluralism: Lessons from Indigenous Governance Systems in the Andes”, Journal of Latin AmericanStudies. DOI: https://doi.org/10.1017/S0022216X16002273 Published online: 16 de enero 2017. ISSN: 0022-216X (printed), 1469-767X (electronic)

Legalizing indigenous self-determination: autonomy and buen vivir/ vivir bien in Latin America

Focusing on recent experiences in Mexico and Ecuador, this introductory essay to a special dossier in the Journal of Latin American and Caribbean Anthropology explores key aspects of the complexities involved in efforts to legalize indigenous rights and claims. We map out the origins of this turn to legalization and argue that this multiple and de-centered—or legally plural—process has today entered a new phase associated with the exhaustion of the neoliberal multicultural model that dominated much of the region in the 1990s and 2000s.

Journal of Latin American and Caribbean Anthropology 

(2017) with Anna Barrera, “Legalizing indigenous self-determination: autonomy and buen vivir/ vivir bien in Latin America”, Journal of Latin American and Caribbean Anthropology (JLACA). DOI: 10.1111/jlca.12233. Publicado en línea: 16 de enero 2017. ISSN (electronic): 1935-4940

Legal Pluralism and Indigenous Women’s Rights in Mexico: The Ambiguities of Recognition

This article explores the effects of the ambiguous recognition of indigenous or “customary” law in Mexico on the struggle of indigenous women to ensure their rights are respected. After outlining the history of legal changes to recognize indigenous law, I analyze three paradigmatic cases: Eufrosina Cruz Mendoza and rights to political participation; Inés Fernández Ortega and Valentina Cantú and rights to physical security; and Nestora Salgado García and the criminalization of indigenous autonomies in a context of the spread of organized crime, revealing the Mexican government’s inconsistent approaches to recognizing indigenous peoples and women’s rights.

Download PDF | NYU Full Access Journal

(2016) “Legal Pluralism and Indigenous Women’s Rights in Mexico: The Ambiguities of Recognition”, NYU Journal of International Law and Politics. 48 (4): 1125-1150. ISSN‎: ‎0028-7873 (printed); 1930-6237 (electronic)

“Subaltern Cosmopolitan Legalities & the Challenges of Engaged Ethnography”

universitas75 portada.indd

This article considers the challenges of engaged ethnographic research with indigenous peoples’ social movements within shifting fields of interlegality and fragmented sovereignties marked by multiple inequalities, racism, impunity and violence. Drawing on the experience of a collaborative research project on legal pluralism and indigenous women’s access to justice and security, that aims to strengthen subaltern cosmopolitan legalities (Rodríguez-Garavito and Santos, 2005), it discusses a number of issues including: scholarly privilege and ethnographic authority; testimonies, their value, uses and abuses, and; interpreting and writing about inequalities and tensions within the communities and organizations we work with.

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Universitas Humanística (2013). Núm. 75: 219-47.

The Challenge of Indigenous Legal Systems: Beyond Paradigms of Recognition

 

This article outlines recent processes of legal “recognition” of indigenous justice systems, identifying the main issues of contention, advances, and challenges. Drawing on examples from Guatemala, Mexico, Ecuador, and Bolivia, it points to some of the innovative ways in which indigenous peoples are strengthening and revitalizing their justice practices, before considering the broader implications of recent developments for politics and law in the region.

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“The Challenge of Indigenous Legal Systems: Beyond Paradigms of Recognition”. Brown Journal of World Affairs, Spring/Summer 2012, Vol. XVIII, Issue 11: 103-114.

Promesas y Peligros de la “Coordinación”: Derecho Indígena, Inseguridad y la Búsqueda de Justicia en Guatemala

Since the start of the 1990s, political and legal reforms in “multicultural” or “pluricultural” Latin American states have favored the recognition of legal pluralism and, increasingly, of special jurisdictions for indigenous law. Political debate, legislative proposals and everyday practice has focused on how to “coordinate” official and indigenous justice systems in a way that guarantees fundamental human rights and indigenous peoples’ rights to jurisdictional autonomy. This essay presents a critical review of tendencies towards interlegal “coordination” in Latin America, followed by an ethnographic analysis of the political, social and cultural negotiations involved in a specific experience of interlegal, interethnic coordination which occurred in Santa Cruz del Quiché, Guatemala, in 2006. Instead of concepts of separate or closed forms of law and identity which underpin contemporary paradigms of coordination, it is proposed here that intercultural negotiations about the nature of law, and through law, produce forms of justice that challenge existing ethnic frontiers. These “legal hybrids” (Santos 2006) are a consequence of the demands of organized indigenous peoples in favour of their rights and of their efforts to strengthen their own forms of government and justice. However, they are also a product of the competition between different imaginaries of justice and the search for security in a highly violent society marked by the neoliberal global capitalism of the twenty first century.

 Download PDF | Revista Argentina de Teoría Jurídica 

(2011) “Promesas y peligros de la “coordinación”: Derecho indígena, inseguridad y la búsqueda de justicia en Guatemala,” Revista Argentina de Teoría Jurídica, Volumen 12: 1-46.

Indigenous Women’s Access to Justice in Latin America

Indigenous peoples in Latin America suffer systematic lack of access to justice in state legal systems Structural exclusion and discrimination particularly affect indigenous women. In this article we analyze the challenges and benefits for indigenous women when they try to access justice in indigenous legal systems. We emphasize the need to consider normative frameworks, legal awareness, access to appropriate justice forums and the achievement of satisfactory remedies. While the reasons for lack of access to justice or the barriers involved in specific cases depend on the context, we identify a number of common contributing factors: poverty, discrimination and racism, violence exercised by state and non-state actors and lack of women’s participation in public life. We suggest that the gradual recognition of legal pluralism, as well as the incorporation of international standards on women’s rights within statutory law, is shaping prospects for improved access to justice for indigenous women across the continent. However, we conclude that their demands for gender equality and more dignified lives can only be met when indigenous peoples collectives rights are guaranteed and respected.

(2011) with María Teresa Sierra, “Indigenous Women’s Access to Justice in Latin America,” Journal for Human Rights/ Menschenrechte in Lateinamerika Vol. 5 (2): 36-51.

Contested Sovereignties: Indigenous Law, Violence & State Effects in Postwar Guatemala

This article analyzes the efforts of organized indigenous peoples to exercise their own forms of law within the context of social violence and impunity that characterizes postwar Guatemala. Through an ethnographic exploration of alternative justice practices in the region of Santa Cruz del Quiché, it aims to contribute to the “anthropology of the state”. Specifically, the article describes some of the different phenomena or social forces that compete to exercise sovereignty in the region and reflects on what these reveal about the nature of the contemporary state in Guatemala.

Download PDF | Critique of Anthropology

(2011) “Contested Sovereignties: Indigenous Law, Violence and State Effects in Postwar Guatemala”, Critique of Anthropology, Vol.31 (3): 161-84.

Building Mayan Authority & Autonomy: The “Recovery” of Indigenous Law in Post-Peace Guatemala

Across Latin America, debates and practice around indigenous law provide a window on shifting relations between indigenous movements, states, and international actors. In Guatemala, the practice of indigenous law is a reflection of cultural difference, a response to past and present violence, and a resource for a population denied access to justice. In the postwar period, indigenous law has become a central element of contemporary Mayan identity politics. Together with the policy shift toward state-endorsed multiculturalism, this has meant it has become a highly contested and politicized terrain. This article examines attempts by indigenous activists to ‘‘recuperate’’ and strengthen indigenous law – or what is now termed ‘‘Mayan law’’ (derecho Maya) – in Santa Cruz del Quiche´, Guatemala. Analyzing the tensions between local demands, the Mayan movement, international NGOs and intergovernmental bodies, and the Guatemalan state, it reflects on what they reveal about the limits and contradictions of the multicultural model of justice promoted since the end of the armed conflict.

Download PDF | Studies in Law, Politics, and Society / Emerald

(2011) “Building Mayan Authority and Autonomy: The “Recovery” of Indigenous Law in Post-peace Guatemala”, Studies in Law, Politics, and Society Vol. 55: 25-57. ISSN: 1059-4337

Indigenous Women’s Access to Justice in Latin America

indigenouswomensIndigenous peoples in Latin America suffer systematic lack of access to justice in state legal systems Structural exclusion and discrimination particularly affect indigenous women. In this article we analyze the challenges and benefits for indigenous women when they try to access justice in indigenous legal systems. We emphasize the need to consider normative frameworks, legal awareness, access to appropriate justice forums and the achievement of satisfactory remedies. While the reasons for lack of access to justice or the barriers involved in specific cases depend on the context, we identify a number of common contributing factors: poverty, discrimination and racism, violence exercised by state and non-state actors and lack of women’s participation in public life. We suggest that the gradual recognition of legal pluralism, as well as the incorporation of international standards on women’s rights within statutory law, is shaping prospects for improved access to justice for indigenous women across the continent. However, we conclude that their demands for gender equality and more dignified lives can only be met when indigenous peoples collectives rights are guaranteed and respected.

Download PDF | CMI Chr. Michelsen Institute

(2011) con María Teresa Sierra, “Acceso a la justicia para las mujeres indígenas en América Latina,” CMI working paper, Chr. Michelsen Institute, Bergen. ISSN: 0804-3639

‘Emancipation’ or ‘Regulation’ ? Law, Globalization & Indigenous Peoples’ Rights in Post-War Guatemala

During the last two decades processes of legal globalization have led to the increasing codification of the collective rights of indigenous peoples. In Latin America this shift towards ‘codifying culture’ began with a series of constitutional reforms during the 1990s which recognized a series of rights of indigenous people and the ratification by many states of International Labour Organisation’s Convention 169 on the rights of indigenous and tribal peoples. For many, this regional ‘neoliberal multicultural’ turn (Hale 2002; 2006) was not about recognizing rights as such, but rather heralded a series of governmental policies signalling limited acceptance of cultural diversity which ultimately facilitated transnational forms of capitalist accumulation.

The limited gains of state-endorsed multiculturalism and the threats posed to indigenous livelihoods by the current commodities boom have encouraged a growing number of counter-hegemonic legal engagements or legal globalization ‘from below’ which resort to ever more transnationalized legal pluralities (Santos & Rodríguez Garavito 2005). Indigenous people across Latin America continue to judicialize their protests, appealing to legal entitlements – including both ‘hard law’ (treaty and constitutional law) and ‘soft law’ (such as the internal norms of multilateral development institutions) – in order to claim greater autonomy and protest against the effects of dominant patterns of economic development. Using Boaventura de Sousa Santos´s heuristic device of the regulatory and emancipatory dimensions of law (Santos 1998; 2002), in this article I examine the effects of legal globalization and the appropriation of legal instruments and discourses by indigenous people in post-war Guatemala. Specifically, I highlight the distinct legal frameworks, and conflicting notions of property, development, citizenship and democratic participation and voice at play in recent mobilizations against mining projects. The conclusions reflect on the possible effects of judicializing indigenous peoples´ political demands.

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(2011) “’Emancipation’ or ‘regulation’? Law, globalization and indigenous peoples’ rights in post-war Guatemala”, Economy and Society, Vol.40 (2): 279-305. ISSN: 0308-5147

Género, Derecho y Cosmovisión Maya en Guatemala

This article explores the contributions made by women’s organizations in Guatemala, regarding their reflections on identity, as well as on collective and gender rights; it also analyzes the way in which these reflections help to revitalize and strengthen indigenous law. The essay’s prime objective is to establish links between Mayan women’s theories about gender and identity, and the emerging practices for revitalizing indigenous law, which are guided by the efforts of Mayan activists to rescue their culture’s values and principles.

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(2009) with Morna Macleod, “Género, Derecho y Cosmovisión Maya en Guatemala,” Desacatos, Vol.31: 51-72. ISSN: 1405-9274

Cruces de Fronteras, Identidades Indígenas, Género y Justicia en las Américas

This article analyzes and reflects on the deep transformations currently suffered by indigenous communities under the neoliberal globalization regime, as well as the way in which indigenous people articulate as subjects of law under this context in different regions of Mexico, Guatemala and the United States (including the transnational experiences of indigenous migrants between these countries).

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(2009), with Shannon Speed, Maylei Blackwell, Aída Hernández, Teresa Sierra, Morna Macleod, Renya Ramírez and Juan Herrera, “Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology,” Journal of Latin American Anthropology.Vol.14 (2): 300-331.

Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology

Journal LA and Caribean AnthroIn this essay, we describe some of the collective reflections and analyses that emerged as a result of a comparative project initiated with a UC MEXUS-CONACYT Collaborative Grant, awarded funds to two research teams, one in the United States and one in Mexico. The aim of the project was to develop a common theoretical framework for understanding the complex relationship between movements for indigenous rights, state reform, and juridical structures. A principal goal of this framework was to allow for a comparison of the experience of indigenous groups in regions of Mexico, Guatemala, and the United States, including transnational indigenous migrants between these countries. We focused on the ways in which indigenous people are struggling for political and cultural rights, local autonomy, and effective justice practices in the context of changes being wrought by processes of economic, political, legal, and cultural globalization. We were particularly interested in analyzing how men and women might be living these struggles differently and how gender norms and dynamics might be shifting as a result of organizational experiences or migratory processes.

The Journal of Latin American & Caribbean Anthropology 

(2009) with Shannon Speed, Maylei Blackwell, Aída Hernández, Teresa Sierra, Morna Macleod, Renya Ramírez and Juan Herrera, “Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology,” Journal of Latin American Anthropology, Vol.14 (2): 300-331.

The Judiciary & Indigenous Rights in Guatemala

In Latin America, indigenous peoples constitute a marginalized group that is using the courts, increasingly, as one means by which to pursue and defend its rights. In part, this is a result of the juridification of its collective rights through processes of constitutional reform across the region during the 1980s and 1990s. It is also a consequence of the very limited advances that have been made to date in guaranteeing these rights in practice. The enlarged legal recognition of indigenous autonomy has occurred at the same time as the implementation of economic policies promoting free trade and accelerated natural resource exploitation—policies that affect indigenous communities negatively and disproportionately. This combination of factors has meant that indigenous movements more and more have called on the judiciary in defense of their collective rights, albeit often with limited tangible effects.

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(2007) “The Judiciary and Indigenous Rights in Guatemala”, International Journal of Constitutional Law, Vol. 5 (2): 211-241.

Globalización Legal y Derechos Indígenas en la Guatemala de Posguerra

This article examines processes of legal globalization and the ways in which these affect indigenous rights in Guatemala. Its chief aim is to analyze the effects of the dynamic between two forms of legal globalization and its impact on the socio-legal field. First, the article examines reforms sponsored by international development agencies in Guatemala that seek to increase access to justice for the indigenous population: globalization “from above”. The second form of legal globalization “from below”, refers to the highly globalized manner in which indigenous law is being re- constituted in Guatemala. The indigenous mayoralties (alcaldías indígenas) and indigenous defenders NGOs are discussed as an example of this tendency, together with a case where the idea of “prior consultation” which appears in ILO Convention 169 was appropriated and reelaborated by local communities in the west of the country in order to oppose proposed mining concessions. The article concludes that the dynamic between legal globalization “from above” (judicial reform) and legal globalization “from below” (appropriation of instruments and rights discourses) is creating, in turn, hybrid le- gal spaces in Guatemala, local and national legal fields where the content, legitimacy and exercise of “law” is highly contested.

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(2006) “Globalización legal y derechos indígenas en la Guatemala de posguerra,” Alteridades Vol. 16 (31): 23-37.

Renegociando la ‘Ley y el Orden’: Reforma Judicial y la Respuesta Ciudadana en la Guatemala de Posguerra

Democratization portadaThis article examines reforms aimed at strengthening the rule of law in Guatemala implemented since the signing of the peace accords in December 1996. Despite nearly $200 million in foreign aid to the justice sector, impunity remains the rule, the judicial process is subverted by military and criminal networks, citizen confidence in the judicial system remains low and recourse to non-judicial measures – the “privatisation of justice”- is on the increase. It is argued that the institutionally-focused approach to rule of law reform currently predominating in donor thinking ignores the historical context within which understandings of ‘law’, ‘justice’ and ‘rights’ are shaped. Institutions do matter, but only by understanding the role of law in long-run processes of state formation and the dynamic, inter-subjective nature of legal interactions can we begin to understand the specificities of socio-legal change.

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(2003), “Renegotiating ‘law and order’: judicial reform and citizen responses in post-war Guatemala”, Democratization, Vol. 10 (4): 137-160.

Paz, Progreso, Justicia y Honradez: Law & Citizenship in Alta Verapaz During the Regime of Jorge Ubico

Prospects for the ‘rule of law’ in the present are shaped by historical experiences of law by elite and non-elite groups in the past. In this article I explore changing conceptions and practices of rights’ and ‘justice’ as expressed in the legal and administrative encounters between indigenous people and state officials during the regime of Jorge Ubico (1931-1944). The extension of the state’s coercive and administrative apparatus to remote rural areas, new legislation and changes in public administration transformed relations between working people, coffee finqueros and the state in Guatemala. This implied new obligations and exactions for Mayans, but also provided them with new opportunities to contest and negotiate their conditions. Indigenous people strategically engaged with the law to contest the terms of their domination by elite actors and to mediate conflicts between themselves. As state ideologies of ‘moral behaviour’ led to increasing regulation of the private sphere, this was particularly important in the case of conflicts over gendered rights and obligations. Although formally excluded from the category of citizens, indigenous people used the official language and discourse of citizenship to further their claims, in turn reshaping Guatemalan nation-state.

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(2000) “Paz, progreso, justicia y honradez: law and citizenship in Alta Verapaz during the regime of Jorge Ubico”, Bulletin of Latin American Research, Vol.19 (3): 283-302.

Elections & Democratization in Honduras Since 1980

Democratization portadaAlthough Central America returned to electoral rule during the 1980s, lack of participation, political violence and militarization meant that democracy remained decidedly limited. This article outlines the particularities of the transition to constitutional government for the case of Honduras, and examines the role of successive electoral processes on prospects for democratic consolidation, focusing on the relationship between electoral processes and the nature of the party system. It is maintained here that whilst the longevity of the bipartisan system has been an important element of stability, the nature of the two dominant parties (Liberal and National) has hindered the consolidation of a more democratic politics. However, the article also argues that successive elections have been the catalyst for limited modernization of the party system and have increased citizenship confidence in the electoral process, and that this ‐together with a gradual reduction in the influence of the military ‐ has strengthened future prospects for deepening democracy. None the less, the article concludes that unless a new relationship is established between political parties and civil society to ensure a more representative and participatory form of politics, democracy will remain limited in Honduras.

Available at Taylor & Francis Online

(1996) “Elections and Democratization in Honduras since 1980,” Democratization, Vol. 3 (2): 17-40.

Honduras: The Politics of Exception & Military Reformism (1972-1978)

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The specificities of contemporary Honduran politics are explored by examining both national historical development and the cooption of popular protest by military reformism in the I970s. The dynamics underpinning demobilisation of the popular movement after 1976 are explained with reference to both the agrarian reform implemented by the military and certain features of local political culture, such as patronage and clientelism, which – it is argued – were utilised selectively to coopt a sector of the organised labour movement. Divisions within the popular movement, in part a product of traditions of state-labour relations, were also significant in weakening the popular challenge.

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(1995) “Honduras: The Politics of Exception and Military Reformism (1972-1978)”, Journal of Latin American Studies, Vol.27 (1): 99-127.

Challenging Male Dominance in Norm-Making in Contexts of Legal Pluralism: Insights from the Andes

Indigenous women in Ecuador, Peru and Bolivia have made significant progress in gaining greater political voice and taking part in deliberations on norms and rules both within their community-basedgovernance systems as well as in national political institutions. As we discuss in this chapter, strategies to improve indigenous women’s voice and norm-making powers in community-based governance systems in the Andes may involve context-specific languages and frames emphasizing “complementarity” as well as or in contrast to claims for gender equality or parity. We argue that these forms and strategies of claiming voice and greater women’s participation within indigenous governance systems should be seen as complementary to national approaches for advancing gender equality, rather than in conflict with them.

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With Anna Barrera Vivero, in Ruth Rubio-Marin and Will Kymlicka (eds), Gender Parity and Multicultural Feminism, Oxford University Press, Oxford and New York (2018): 238-272. ISBN: 978-0-19-882962-1

Legal pluralism and fragmented sovereignties: legality and illegality in Latin America

This chapter aims here to encourage greater dialogue between the regional literature on legal pluralism and analyses of the role played by various non-state forms of law or para-legalities in securing order in contemporary Latin America. Although they consider different processes, making reference to distinct empirical and conceptual problems, the study of legal pluralism in the region has much to gain from engaging with contemporary anthropological debates on sovereignty and i/illegality in order to consider not just subaltern legal orders and their relationship with the state, but more broadly the changing nature of “plural constellations of governance” (Benda Beckmann and Eckert 2009: 3).

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In Rachel Sieder, Karina Ansolabehere and Tatiana Alfonso (eds), The Handbook of Law and Society in Latin America. New York: Routledge (2019): 71-85. ISBN: 978-1138184459

Pluralismo Jurídico Y Los Derechos De Las Mujeres Indígenas En México: Las Ambigüedades De Su Reconocimiento

This article discusses the effects of the ambiguous recognition of indigenous law in Mexico on the struggles of indigenous women to ensure that their rights are respected. It argues that formal legal recognition of indigenous autonomies and legal pluralism in Mexico is weak and ambiguous: state authorities intervene selectively against indigenous authorities to champion the human rights of indigenous women when it is to their political advantage. Yet policies of economic development and security violate human rights and expose men and women to greater harm exercised by highly militarized and racist forms of state power.

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(2018) “Pluralismo jurídico y los derechos de las mujeres indígenas en México: Las ambigüedades de su reconocimiento” in Roger Merino and Areli Valencia (eds.), Descolonizar el Derecho. Pueblos indígenas, derechos humanos y Estado plurinacional. Palestra: Lima ISBN: 9786123250270

Introducción. Mujeres indígenas y pluralidades legales en América Latina: Repensando justicia y seguridad

This introductory essay frames a series of ethnographic studies from a three year research project involving eleven women researchers and different processes of indigenous women’s organizing in Mexico, Guatemala, Ecuador, Bolivia and Colombia that aim to secure greater gender justice within communities, organizations and societies. Taken together, the studies examine how indigenous women collectively engage with different forms of legality, and with ideas about (in)justice and (in)security. In particular, the authors explore the ways in which the intersectionality of violence against indigenous women is expressed, reinforced and resisted through resort to legal mechanisms and discourses, deploying different framings which, as we argue below, are both situated and relational. The introductory essay presents the different cases and discusses some of the key theoretical, conceptual and methodological issues for analyzing indigenous women’s mobilization for justice and security in contexts of legal pluralism in Latin America.

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(2017) “Introducción. Mujeres indígenas y pluralidades legales en América Latina: Repensando justicia y seguridad” en  Rachel Sieder (ed.), Exigiendo justicia y seguridad: Mujeres indígenas y pluralidades legales en América Latina, CIESAS, México: 13-50. ISBN: 978-607-486-445-8

Entre la participación y la violencia: Justicia de género y gobierno neoliberal en Chichicastenango, Guatemala

This chapter reflects on the effects of the territorial, political, and legal reorganization associated with development-related social policies and decentralizing neoliberal reforms, specifically the ways in which these policy framings affect the possibilities of local indigenous women activists to work on issues of justice and security from their own cultural standpoints and gender perspectives. The chapter analyzes the challenges faced by a group of Maya K’iche’ women in the municipality of Chichicastenango, Quiché, Guatemala, in their efforts to strengthen spaces and strategies to combat the discrimination and violence they suffer both in their own families and communities and in society in general.

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(2017) “Entre la participación y la violencia: Justicia de género y gobierno neoliberal en Chichicastenango, Guatemala” en Rachel Sieder (ed.), Exigiendo justicia y seguridad: Mujeres indígenas y pluralidades legales en América Latina, CIESAS, México: 119-160. ISBN: 978-607-486-445-8

Soberanías en Disputa: Justicia Indígena, Violencia y Efectos de Estado en la Guatemala de Posguerra

Justicias Indigenas

This article analyzes the efforts of organized indigenous peoples to exercise their own forms of law and justice within the context of social violence and impunity that characterizes postwar Guatemala. Through an ethnographic exploration of alternative justice practices in the region of Santa Cruz del Quiché, it aims to contribute to discussions around the ‘anthropology of the state’. Specifically, the article describes some of the different phenomena or social forces that compete to exercise sovereignty in the region and reflects on what these reveal about the nature of the contemporary state in Guatemala.

 

 

(2013) en María Teresa Sierra,  Aída Hernández y Rachel Sieder (eds.), Justicias indígenas y Estado: Violencias contemporáneas, FLACSO-CIESAS: México, pp. 229-255.

Introduction: Indigenous women and legal pluralities in Latin America: Demanding justice and security

This introductory essay frames a series of ethnographic studies from a three year research project involving eleven women researchers and different processes of indigenous women’s organizing in Mexico, Guatemala, Ecuador, Bolivia and Colombia that aim to secure greater gender justice within communities, organizations and societies. Taken together, the studies examine how indigenous women collectively engage with different forms of legality, and with ideas about (in)justice and (in)security. In particular, the authors explore the ways in which the intersectionality of violence against indigenous women is expressed, reinforced and resisted through resort to legal mechanisms and discourses, deploying different framings which, as we argue below, are both situated and relational. The introductory essay presents the different cases and discusses some of the key theoretical, conceptual and methodological issues for analyzing indigenous women’s mobilization for justice and security in contexts of legal pluralism in Latin America.

Rutgers University Press

(2017) “Introduction: Indigenous women and legal pluralities in Latin America: Demanding justice and security” in Rachel Sieder (ed.) Demanding Justice and Security: Indigenous Women and Legal Pluralities in Latin America. Rutgers University Press: New Brunswick, NJ: pp.1-25. ISBN: 978-0-8135-8792-9

Between Participation and Violence: Gender Justice and Neoliberal Government in Chichicastenango, Guatemala

This chapter reflects on the effects of the territorial, political, and legal reorganization associated with development-related social policies and decentralizing neoliberal reforms, specifically the ways in which these policy framings affect the possibilities of local indigenous women activists to work on issues of justice and security from their own cultural standpoints and gender perspectives. The chapter analyzes the challenges faced by a group of Maya K’iche’ women in the municipality of Chichicastenango, Quiché, Guatemala, in their efforts to strengthen spaces and strategies to combat the discrimination and violence they suffer both in their own families and communities and in society in general.

Rutgers University Press

(2017) “Between Participation and Violence: Gender Justice and Neoliberal Government in Chichicastenango, Guatemala” in Rachel Sieder (ed.) Demanding Justice and Security: Indigenous Women and Legal Pluralities in Latin America. Rutgers University Press: New Brunswick, NJ: pp. 72-94. ISBN: 978-0-8135-8792-9

Indigenous Peoples’ Rights and the Law in Latin America

This essay provides a synthetic overview of regional developments in the legal recognition of indigenous peoples’ collective rights since the 1990s, focusing particularly on evolving standards on free, prior and informed consent and on current challenges for securing indigenous rights.

 

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(2016) “Indigenous Peoples’ Rights and the Law in Latin America” in Corinne Lennox and Damien Short (eds), Routledge Handbook of Indigenous Peoples’ Rights. Routledge: New York: pp. 414-424. ISBN: 978-1-85743-641-9:

Pueblos Indígenas en Guatemala: Rearticulación Comunitaria y Disputa de Legalidades en la Democracia Neoliberal

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In this chapter we analyze the political actions of indigenous peoples in Guatemala in the first decade and a half of the XXI century, in a context marked by the wave of neoliberal accumulation associated with extractive industries and the political agreements that underpin them. We identify a series of processes that move between two poles: (1) the rearticulation of communities as spaces of self-governing politics, and; (2) disputes over the legality of the state from opposing logics and legitimacy. The alternative use of law and the construction of indigenous law are central aspects of indigenous peoples’ political subjectivities.

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“Introducción” Justicias Indígenas y Estado: Violencias Contemporáneas

Justicias Indigenas

This introductory essay introduces the different regional contexts of legal pluralities in Africa and Latin America. It then summarizes different analytical approaches to legal pluralities and proposes a focus on their role in emerging constellations of governance. A third section considers the ways in which contemporary development practice has increasingly engaged with the issue of legal pluralities. A fourth section discusses the intersection of debates on gender justice and legal pluralities. A final section suggests some overall conclusions.

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Género, Derecho y Cosmovisión Maya en Guatemala

Genero_Complementariedas_Exclusiones_Portada

This article explores the contributions made by women’s organizations in Guatemala, regarding their reflections on identity, as well as on collective and gender rights; it also analyzes the way in which these reflections help to revitalize and strengthen indigenous law. The essay’s prime objective is to establish links between Mayan women’s theories about gender and identity, and the emerging practices for revitalizing indigenous law, which are guided by the efforts of Mayan activists to recover and reconstruct their culture’s values and principles.

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Sexual Violence & Gendered Subjectivities: Indigenous Women’s Search for Justice in Guatemala

Portada del libro

This chapter analyses the ways in which indigenous women’s rights to physical integrity and protection from sexual violence are – or are not – addressed within the state justice system and indigenous community justice in postwar Guatemala. Contrasting two specific cases of rape and attempted rape which occurred in the department of Quiché, it explores how justice practices in the postwar period are framed by histories of violence, the interplay between different legal spheres, and different ontologies or understandings of personhood.

Available on Amazon | Routledge / Taylor & Francis Group

 

(2012) “Sexual violence and gendered subjectivities: indigenous women’s search for justice in Guatemala,” in Gender Justice and Legal Pluralities: Latin American and African Perspectives, ed. with John-Andrew McNeish, Routledge-Cavendish: New York.

Introduction: Gender Justice & Legal Pluralities – Latin American & African Perspectives

Portada del libroThe conceptual and methodological framework set out in this introductory chapter emphasizes the fluid, multilayered and transnational nature of legal pluralities (contrasting with more legalistic approaches which understand legal pluralism as the coexistence of different fixed legal orders within a single nation-state). We privilege both women and men’s agency and perceptions, underlining the importance of local, grounded understandings. We also place an emphasis on the role that structure and long-run historical processes play in shaping constellations of legal pluralities and governance, and current prospects for positive change. A dual focus on legal pluralities and governance also helps us to critically consider the nature and effect of different development interventions aimed at improving gender justice. Rather than asking whether legal pluralities are “good” or “bad” for women –a normative stance which we find unhelpful- we understand legal pluralities as a social fact and seek to analyze how gendered rights claims are made and responded to within a range of different cultural, social, economic and political contexts.

Available on Amazon | Routledge / Taylor & Francis Group

(2012) with John-Andrew McNeish, “Introduction: Gender Justice and Legal Pluralities – Latin American and African Perspectives,” in Gender Justice and Legal Pluralities: Latin American and African Perspectives, ed. with John-Andrew McNeish, Routledge-Cavendish: New York.

Pueblos Indígenas y Derecho en América Latina

 

This chapter is part of a collective volume that aims to establish a Latin American agenda for socio-legal and political studies. Through unprecedented legal innovations at international, continental and national levels, indigenous peoples in Latin America have become subjects of collective rights. The chapter reflects on the processes, costs and benefits of judicialization of indigenous peoples’ demands in the region.

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(2011) “Pueblos indígenas y derecho en América Latina,” in César Rodríguez Garavito (coord.) El derecho en América Latina: los retos del siglo XXI, Buenos Aires: Siglo XXI: 302-321. ISBN: ISBN 978-987-629-192-7.

Legal Cultures in the (Un)Rule of Law: Indigenous Rights & Juridification in Guatemala

This chapter analyses the processes of juridification whereby indigenous people’s social movements stake their rights claims to greater autonomy, not simply or principally by resorting to the tribunals but by mimicking the state and constituting alternative “(para)-legalities”. More broadly, it seeks to reflect on the relationship between dominant legal cultures and social movement engagements with legality within a broader context of legal pluralism.


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(2011) “Legal Cultures in the (Un)Rule of Law: Indigenous Rights and Juridification in Guatemala,” (re-print of part of original chapter) in Lawrence M. Friedman, Rogelio Pérez-Perdomo, y Manuel A. Gómez (eds.), Law in Many Societies. A Reader, Stanford CA: Stanford University Press: 152-8. ISBN: 9780804763738

Guatemala: Enduring Underdevelopment

A contribution to a textbook on politics and development, this chapter examines Guatemala as a persistent case of underdevelopment, defining development in terms of social, economic, cultural, and political rights. It analyses historical patterns of state formation and economic development before examining the attempts to reverse historical trends and “engineer development” represented by the 1996 peace agreement. The final section signals the main contemporary causes of the country’s persistent underdevelopment: a patrimonialist and predatory state linked in turn to the strength and conservatism of the private sector, the weakness of the party system, the continuing influence of the armed forces, and extremely high levels of crime and impunity.

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(2011) “Guatemala: Enduring Underdevelopment?” in Vicky Randall, Peter Burnell and Lisa Rakner (eds), Politics in the Developing World, Oxford University Press, 3rd edition: 452-464. ISBN: 978-0-19-957083-6.

La Antropología Frente a los Derechos Humanos y los Derechos Indígenas

This essay considers the relationship between legal-anthropology, human rights and the rights of indigenous peoples. The first part discusses the principal theoretical and methodological perspectives in legal anthropology; the second addresses the history of relations between anthropology and the concept of universal human rights since the mid-twentieth century. A third section focuses on the recent development of legal anthropology in Mexico, highlighting its contributions to debates and practice surrounding human rights and the rights of indigenous peoples.

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(2010) La antropología frente a los derechos humanos y los derechos indígenas,” in Ariadna Estévez y Daniel Vásquez (coords.) Los derechos humanos en las ciencias sociales: una perspectiva multidisciplinaria. Mexico: FLACSO-UNAM-CISAN: 191-219. ISBN: 978-607-7629-38-2

Legal Cultures in the (Un)Rule of Law: Indigenous Rights & Juridification in Guatemala

This chapter analyses the processes of juridification whereby indigenous people’s social movements stake their rights claims to greater autonomy, not simply or principally by resorting to the tribunals but by mimicking the state and constituting alternative “(para)-legalities”. More broadly, it seeks to reflect on the relationship between dominant legal cultures and social movement engagements with legality within a broader context of legal pluralism.


Available on Amazon

 

(2010) “Legal Cultures in the (Un)Rule of Law: Indigenous Rights and Juridification in Guatemala,” in Javier Couso, Alex Huneeus and Rachel Sieder (eds). Cultures of Legality: Judicialization and Political Activism in Latin America. Cambridge University Press: 161-181. ISBN: 978-0-521-76723-1

Cultures of Legality: Judicialization & Political Activism in Contemporary Latin America

This introductory chapter explores this landscape of changing legal cultures in Latin America, emphasizing the repertoires of legal ideas and practices that accompany, cause, and are a consequence of the judicialization of politics. It argues that a focus on the concept of legal cultures offers three distinct contributions to current debates on politics, law, and society. First, it pushes scholars of courts to take seriously the role that ideas, language, and informal practices play in judicial politics. Second, it pushes the debate on judicialization in Latin America beyond the courts and, more profoundly, beyond the state. Third, by exploring the specific forms judicialization processes take in Latin America, it teaches us something new about law and politics.

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(2010) “Cultures of Legality: Judicialization and Political Activism in Contemporary Latin America,” in Javier Couso, Alex Huneeus and Rachel Sieder (eds). Cultures of Legality: Judicialization and Political Activism in Latin America. Cambridge University Press: 3-21. ISBN: 978-0-521-76723-1

Entre la Multiculturalización y las Reivindicaciones Identitarias: Construyendo Ciudadanía Étnica y Autoridad Indígena en Guatemala

Despite the weakness of the turn to multiculturalism in Guatemala, this chapter argues that the peace accords led to a new phase of construction of ethnic citizenship and new forms of indigenous authority. Operating within a complex field of power that is increasingly transnationalized, these processes largely depend on the agency of indigenous players in their search for new forms of identity, authority and governance, development, and an ethical and moral life. The chapter concludes that while not all indigenous people self-identify as “Mayas”, these changes may lead to a new phase of re-articulations and new counter-hegemonic movements.

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(2009) “Entre la Multiculturalización y las Reivindicaciones Identitarias: Construyendo Ciudadanía Étnica y Autoridad Indígena en Guatemala,” in Santiago Bastos (comp.), Multiculturalismo y Futuro en Guatemala, FLACSO, Guatemala: 69-96. ISBN: 978-99939-72-75-4

Legal Globalization & Human Rights: Constructing the ‘Rule of Law’ in Post-Conflict Guatemala

 

In this chapter I focus on post-conflict Guatemala and consider what prevailing global trends in “rule of law construction” might mean for human rights and access to justice, especially of the most vulnerable and excluded sectors of society. How do internationally-supported justice reform initiatives affect relations between the state and society? And what role do different local and international understandings of “human rights” and “rule of law” play within such processes?

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(2008) “Legal Globalization and Human Rights: Constructing the ‘Rule of Law’ in Post-Conflict Guatemala,” in Pedro Pitarch, Shannon Speed and Xochitl Leyva (eds), Human Rights in the Maya Region: Global Politics, Moral Engagements, and Cultural Contentions, Duke University Press: 67-88. ISBN: 978-0822343134

Derechos Indígenas, Reformas Multiculturales y Globalización Legal: ¿La Construcción del “Estado de Derecho” en Guatemala?

 

This chapter analyses attempts to increase access to multicultural justice for indigenous peoples in Guatemala within the context of global processes of judicial reform. It also considers these changes in light of the dynamics of the formation of the Guatemalan state in the longer term. What do decentralization and multiculturalism of law in Guatemala mean for the nature of the State? What impacts will such processes have in terms of justice for the most marginalized sectors of the population?

Available on Prometeo Editorial

 

(2007) “Derechos indígenas, reformas multiculturales y globalización legal: ¿La construcción del “Estado de derecho” en Guatemala?” in Juan Manuel Palacio and Magdalena Candioti (comps.), Justicia, política y derechos en América Latina, Buenos Aires, Prometeo: 63-81. ISBN: 978-987-574-147-8

Políticas de Guerra, Paz y Memória en América Central

Las politicas hacia el pasado

This chapter compares and contrasts the experiences of “politics of memory ” in El Salvador, Honduras and Guatemala; the three Central American countries that during the 90s promoted official processes to investigate past human rights violations. It analyses the role that mobilizations around memory, truth and justice have played in the struggle for democratization.

 

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(2001) “The Politics of Remembering and Forgetting in Central America,” in Alexandra de Brito, Carmen González and Paloma Aguilar (eds.), The Politics of Memory and Democratization, Oxford University Press, Oxford and New York: 161-89.

Advancing Indigenous Claims through the Law: Reflections on the Guatemalan Peace Process

In this chapter we argue that recourse to legalistic strategies and discourses to strategically further the aims of indigenous movements shapes the ways their aspirations are represented. Indigenous identities in Guatemala are effectively being narrated or codified through dominant legal discourses, specifically international human rights law and multiculturalism. This has resulted in the projection of an essentialized, idealized and atemporal indigenous identity, the movement’s leaders often perceiving such essentializing as tactically necessary in order to secure collective rights for indigenous people. Such claims of authenticity have become intrinsic to demands for indigenous legal structures and practices to be given greater political space as part of the wider process of state reform. However, such conceptions ultimately fail to reflect the complexity and power dynamics of social relations in the wake of the armed conflict.

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(2001) with Jessica Witchell, “Advancing indigenous claims through the law: Reflections on the Guatemalan Peace Process” in Jane Cowan, Marie Dembour and Richard Wilson (eds.), Culture and Rights, Cambridge University Press, Cambridge and New York: 201-225. ISBN: 0-521-79339-4

Impulsando las Demandas Indígenas a Través de la Ley: Reflexiones Sobre el Proceso de Paz en Guatemala

In this chapter we argue that recourse to legal strategies and discourses to strategically further the aims of indigenous movements shapes the ways their aspirations are represented. Indigenous identities in Guatemala are effectively being narrated or codified through dominant legal discourses, specifically international human rights law and multiculturalism. We argue this has resulted in the frequent projection of an essentialized, idealized, and timeless indigenous identity as part of actions to secure greater autonomy rights. However, such framings fail to reflect the complexity and dynamics of social relations in the wake of the armed conflict.

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(2001) “Impulsando las demandas indígenas a través de la ley: Reflexiones sobre el proceso de paz en Guatemala,” in Pedro Pitarch (ed.), Representaciones y usos del concepto de Derechos Humanos en el Área Maya, Universidad Complutense, Madrid: 55-82. ISBN: 84-923545-1-8

Revisioning Citizenship: Reforming the Law in Post-Conflict Guatemala


This chapter focuses on the issue of legal pluralism and the recognition of indigenous customary law within the Guatemalan peace process. It understands law as a site of engagement where different imaginaries and political projects of citizenship and the state are contested from above and below. The chapter situates contemporary debates about citizenship in Guatemala in historical context and analyzes the socio-legal transformations which have occurred since the signing of the 1995 Agreement on the Rights and Identity of Indigenous Peoples.

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(2001) “Revisioning citizenship: Reforming the Law in Post-Conflict Guatemala,” in Thomas Blum Hansen y Finn Stepputat (eds.), States of Imagination: Explorations of the Post-Colonial State, Duke University Press: 203-220. ISBN: 0-8223-2801-1

War, Peace & the Politics of Memory in Guatemala

Focusing on the case of Guatemala, this chapter examines a number of variables central to explaining the nature and impact of memory politics: first, the social legacies of widespread human rights violations, including who the victims and perpetrators were, and the kind of impact human rights violations had on society as a whole; second, the circumstances of the transition itself, specifically the prevailing balance of political forces and the different trade-offs between truth and justice that this engendered; third, the role of local human rights organizations and civil society in general, in particular whether and how they supported and/or contested official attempts to deal with the legacy of past violations of human rights; and fourth, the role played by international governmental and nongovernmental organizations in efforts to uncover the truth about the past and address the consequences of human rights violations. In the light of this analysis, the final section of the chapter considers the impact of memory politics on the wider process of democratization in Guatemala.

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(2001) “War, Peace and the Politics of Memory in Guatemala,” in Nigel Biggar (ed.), Burying the Past: Making Peace and Doing Justice After Civil Conflict, Georgetown University Press: 184-206.
ISBN: 0-87840-394-9

The Politics of Remembering & Forgetting in Central America

This chapter compares and contrasts experiences of “memory politics” in El Salvador, Honduras and Guatemala, the three Central American countries which during the 1990s undertook official processes of investigating past abuses of human rights, and examines the examines the role exercises in memory have played in the struggle for democratization. In marked contrast to the Southern Cone of Latin America, the transition to procedural democracy in these three Central American countries roughly coincided with the worst period of human rights abuse, the consolidation of military power over the state and civil society, and the demobilization of opposition movements. It is therefore argued here that effective democratic consolidation hinges less on the constitution of formal procedural channels for participation and representation, and more crucially on the effective and far-reaching demilitarization of state and society. This involves securing both formal changes to state institutions and the creation of a democratic political culture of citizenship. Exercises in memory have constituted a critical variable in these distended and complex processes.

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(2001) “The Politics of Remembering and Forgetting in Central America,” in Alexandra de Brito, Carmen González and Paloma Aguilar (eds.), The Politics of Memory and Democratization, Oxford University Press, Oxford and New York: 161-89. ISBN: 0-19-924090-6

Rethinking Citizenship: Legal Pluralism and Institutional Reform in Guatemala

The December 1996 peace settlement in Guatemala agreed a series of institutional reforms in order to recognize the rights of the country’s indigenous peoples: some 23 ethno-linguistic groups which make up 60% of the overall population. This article explores the relationship between pluriculturalism, citizenship, democracy and law in the contemporary politics of Guatemala. While territorially autonomous regions or separate legal jurisdictions are often proposed as a means to ensure indigenous rights, I argue that within a framework of postconflict reconstruction, integration with a measure of autonomy for democratically organized communities is the ideal. This is linked to development of an integrative form of citizenship which combines both social membership and identity and rights. Finally I argue that support for pro-active efforts to challenge the legacies of authoritarianism, militarization and inequality will be necessary in order to build democracy, build a culture of citizenship and increase justice.

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(1999) “Rethinking Citizenship: Legal Pluralism and Institutional Reform in Guatemala,” Citizenship Studies, Vol.3 (1): 103-118.

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