Studies in Law, Politics, and Society: Volume 55
Table of contents(13 chapters)
List of Contributors
Keal argues that Europeans began formulating their modern system of international laws in conjunction with their colonial projects in the early 1500s. The colonial projects gave rise to several key legal debates regarding: (1) European claims on territories in what we now know as the Americas, and (2) proper conduct of relationships of conquest between indigenous peoples and Europeans (Keal, 2003, pp. 84–87). Initially, competing territorial claims between Spanish and Portuguese interests were settled through a series of Papal Bulls that gave Spain a larger share of Central and South America. The Dutch, English, and French pursued their interests through military and mercantilist means, reconfiguring Spain's initial hold on the majority of the Central and South America (Burkholder & Johnson, 2010).
This chapter discusses the legal and political process whereby indigenous peoples in Chile have demanded, and failed to be granted, constitutional recognition. By identifying indigenous peoples as groups that suffer from both misrecognition and maldistribution, I demonstrate political authorities' and legal scholars' lack of understanding toward indigenous peoples' demands since the resumption of democracy, in the late 1980s. I discuss the way in which indigenous peoples ultimately resort to the law from outside, i.e., international human rights law, to challenge the local understandings and the contours of a Constitution that fails to include the most disadvantaged group in Chilean society.
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. 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.
The recognition of indigenous law in the 1991 Colombian Constitution initiated significant social, political, and cultural transformations within indigenous communities. This article explores how the indigenous law of Pijao communities in Tolima is being constructed, imagined and (re)produced by indigenous leaders who are simultaneously staking out their own political position through an engagement with these processes. The article suggests that this new generation of indigenous leaders seeks to ground its political legitimacy by drawing on the (legal) realm of the state; at the same time, challenges to its legitimacy are also increasingly framed in a legal idiom.
Indigenous-state relations in Chile are being reconfigured around a political rationality and productive logic of “calculative choice,” through the government-run participatory development program Programa Orígenes. Financed by the Chilean state and the Inter-American Development Bank, Orígenes is broadly designed to address productive development, bilingual education, health care, and public services in rural indigenous communities. The technologies of Orígenes include participatory planning, planning tables, and audit. I argue that bureaucrats and indigenous peoples who participate are subjected to subject-making technologies that are integral to a rationalizing and transformative neoliberal assemblage of legal and policy instruments and practices.
Direct democracy by citizen initiatives is often heralded as the avenue for the true will of the people to be heard. While scholars have debated whether this leads to a form of Madison's “tyranny of the majority,” the debate over the concrete impact of such initiatives on racially marginalized groups remains unsettled. We examine a different question about racially marginalized groups' interests in this process: the symbolic assertion of white supremacy expressed through this mechanism of majority will. We develop the concept of “racial spectacles” to describe the narrative vehicles that serve to symbolically reassert and reinforce real existing racial hierarchies and inequalities. We explore the creation of these spectacles through the initiative process because it is a state-sanctioned vehicle that enables white dominance. Paradoxically, these campaigns that purport to be colorblind depend on the enactment of these racial spectacles. Through an analysis of five statewide anti-affirmative action initiative campaigns from 1996 to 2008, we explore both macro and micro political dynamics: public displays of these campaigns as well as individual, private agency expressed in the public and private act of voting; court decisions in initiative litigation as well as individual and interest group participation in these cases. Ultimately, we argue that this form of racial spectacle further inculcates the public in the postracial ideology of colorblindness.
Norberto Bobbio's Birth Centenary was celebrated in Turin in October 2009. This article acknowledges an important 20th century legal philosopher whose work is yet to be fully appreciated in the Anglo-American context. A short introduction is followed by an overview of his works in English, and intellectual profile. Relevant excerpts aim to convey some understanding of his legal scholarship. Three exemplars of his contribution to law: jurisprudence, legal sociology and the general theory of law are discussed. It is argued that a Bobbian lens can be usefully employed to consider some of the pressing 21st century legal-political and social issues.
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