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Legalities and
Illegalities
CHAPTER 11
Mark Goodale
This chapter examines the anthropological study of law in Latin America. My goal
here is threefold. First, I describe a key insight from anthropology about the way law
and its normative cousins are constituted in Latin America by locating these processes
within a more general, perhaps polemical, series of arguments about Latin American
legality (and illegality). Second, I illustrate these baseline theoretical points through
critical soundings in several areas which have drawn the attention of anthropologists
of, and in, Latin America. It is simply not possible to present a comprehensive anthro-
pological overview of law in Latin America, even if this were a stated intention; the
anthropology of law in Latin America remains much too incipient for this. Yet it is
possible to sketch the range of current research and reflection on law in Latin America
that draws from insights anchored within the anthropological tradition. This is not
the same as identifying a putative legal anthropology of Latin America, which does
not, in any event, exist in any meaningful sense. But it is worthwhile to use this oppor-
tunity to describe the outlines of an emergent set of topics for inquiry and social
action, in part so that the reader may judge the usefulness of pursuing the problem of
law in Latin America through a combination of ethnography, nonfoundational social
theory, and cultural critique. Finally, by taking the measure of current anthropologies
of law in Latin America through a necessarily abbreviated, but substantive, discussion
of illustrative topics, I will also indicate potential new ethnographic and critical spaces
for engagement.
The skein of law in Latin America, as elsewhere, can be understood from various
angles of approach. First, one can adopt a jurisprudential framework, in which law is
understood as the body of rules enacted by a legitimate sovereign – first the colonial
empire, then the nation-state – which has the responsibility for enforcing and protect-
ing such rules. Because Latin American “law” in these terms was heavily influenced by
European models – Spanish, obviously, but also French and German – which were
themselves significantly indebted to the Roman civil law, it has orthodoxly required
the trained attention of official jurisprudents, whose task is not so much to make or
interpret the law, as to discover and then codify it. In Latin America, as in other civil
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A Companion to Latin American Anthropology Edited by Deborah Poole
© 2008 Blackwell Publishing Ltd. ISBN: 978-0-631-23468-5
LEGALITIES AND ILLEGALITIES 215
law regions, specific laws are not made, but deduced from the supposedly timeless
current of transcendent or natural law that structures social relations. Because the
anthropological approach to law is so radically different from the jurisprudential, it is
all the more important that one recognizes that the jurisprudential has been, since the
constitution of “Latin America” in the 16th century, the official and thus dominant
epistemic orientation to the normative.
A second important analytical framework for understanding law in Latin America
resembles Anglo-American legal realism. In this mode, law cannot be reduced to its
logical expressions, nor to the institutions that are charged with revealing it. Rather,
the whole range of law’s instrumentalities – constitutional courts, provincial notaries
public, national legislatures, urban bar associations, rural tinterillos (literally “scribes,”
but better, “unofficial lawyers”) – are determined by a set of consequential nonlegal
forces: political, economic, cultural, and moral. Yet despite the fact that Latin Ameri-
can legal realism creates important spaces for inquiry beyond the artificially drawn
boundaries entailed by the deductive and hegemonic legal “science” of law faculties
and constitutional courts, this approach is still constrained by its reliance on a formal
definition of law. In other words, a politically or economically determined law is still
imagined to be a body of rules that can only legitimately flow from the machinery of
the nation-state.
But there is another way in which law in Latin America can be conceptualized and
then encountered: the anthropological. By anthropological I do not, and, indeed,
cannot, mean simply an approach to normative theory and practice in Latin America
developed and pursued by professional anthropologists, whether foreign or “native.”
Rather, an anthropological framework for studying and criticizing law describes a
diverse range of theories and practices that are nevertheless united by a set of common –
even if unstated – theoretical assumptions and patterns of sociolegal praxis.
First, anthropologies of law in Latin America convert the formal or state legal ide-
ologies that circumscribe the legal within philosophical or political boundaries, into
objects for research and critique. An anthropological approach locates law as part of
much wider social and economic processes, which are themselves permanently imbri-
cated within, and constitutive of, the very fabric of Latin America itself. In other
words, anthropologies of law confirm a different kind of truth embedded in Malagón
Barceló’s aphorism that “America was born beneath the juridical sign” (1961:4).
Second, an anthropological orientation does not assume that “law” can only be
approached through its instrumentalities, whether state, provincial, institutional, or
professional; that is to say, law’s content and meanings are not limited to what can be
captured within empirically valid cause-and-effect relationships. Instead, anthropolo-
gies of law are as concerned with legal consciousness and identity as with dispute
resolution; they give as much priority to the traditional social memory that conditions
present understandings of rights and wrongs as to the movement by indigenous peo-
ples in Latin America to codify these understandings in national constitutions.
Third, the anthropological approach to law is open source: it is nondisciplinary,
noninstitutionalized (but see the Red Latinoamericana Antropología Jurídica, RELAJU,
the Latin American Network on Legal Anthropology) and, increasingly, nonelite, to
the extent that working class, union, and peasant intellectuals and their collective
representatives employ an anthropological framework as part of broader legal and
political movements. This is not merely the result of its diametric opposition to
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216 MARK GOODALE
hegemonic orientations to law in Latin America, although this marginality does mean
an anthropological framework will be available to some simply through exclusion;
rather, its theoretical and technical openness is also a consequence of a kind of purpo-
sive epistemological flimsiness. Finally, anthropologies of law in Latin America, despite
their incipience and diversity, are characterized by a counterhegemony, by their link-
age with a range of social justice movements at all meaningful social levels. This is
something that anthropologies of law in Latin America perhaps share with the anthro-
pology of Latin America more generally; but those who employ an anthropological
approach to the legal overwhelmingly do so as part of broader projects for social and
economic transformation, in part because the legal is the key institutional and intel-
lectual mode through which Latin America’s historic power imbalances have been
justified and reinforced.
This description of an emergent anthropological approach to law in Latin America
is also an argument for its value compared with the alternatives. In what remains of
this chapter I will give substance to this argument through a discussion of specific
topics where this value has been most apparent. But before I do this, I would like to
anticipate the discussion’s progression through its full circle, as it were, in order to
make several claims about what anthropological studies of law in Latin America can
tell us about the nature of legality itself in Latin America. First, they show that law in
Latin America is essentially discursive. What this means is that the bodies of rules,
regulatory practices, and categories of normative meaning – i.e. “law” – that are found
throughout Latin America are not primarily self-contained and self-reproducing sys-
tems directed toward social control or the maintenance of public order, as a jurispru-
dential analysis would emphasize; rather, they are better understood as open systems
of representation that produce both regimes of truth and categories of social subjec-
tivity which these regimes encapsulate. Second, legal discourse understood in this way
is arguably the most consequential system of representation in Latin America; and this
has been true since the colonial period, as Latin American historians like Steve Stern
(1982) and others have demonstrated. Third, the systems of representation we can
describe as “law” mediate the production of other, nonlegal structures of meaning
and social practice, such that one must locate the legal in order to fully comprehend
what appear to be the distinct economic, political, and religious dimensions of Latin
American culture and society. In this sense, law in Latin America is constitutive in a
way that economics and politics, for example, are not. Finally, anthropologies of law
in Latin America point to the ways in which legal discourse is produced dialectically:
the spaces of the legal are in constant motion with the spaces of the nonlegal or illegal.
I say “in constant motion” because legality and illegality are never finally settled dis-
cursively, but rather remain two necessary parts of the same conceptual framework
within which “law” itself can serve its purposes. One important implication of this
dialectical understanding of law in Latin America is the fact that vigilante associations,
favela courts, and other “marginal” sites of legal praxis should not be seen as merely
peripheral to law, or a reaction against it. Rather, legality and illegality are fundamen-
tally interdependent within a more basic system of representation and, in many cases,
hegemony.
This dialectical understanding of law that I develop here has been reinforced most
recently by Deborah Poole in an essay on justice and community in Peru. Here Poole
(2004) reconceptualizes the relationship between the state and the “margins” as
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LEGALITIES AND ILLEGALITIES 217
going beyond the merely spatial to evoke the biopolitical topoi within which identity
is constituted in relation to structures of political domination, as much as the more
obvious topographic markers that create lines in the body politic: checkpoints, national
frontiers, “the tracks” (to invoke bell hooks’s indelible metaphor for marginality).
Poole uses the roadside ritual through which the state in Peru “locates” peasants by
checking names against lists in order to subject a whole series of assumed relationships
to critical scrutiny: the relationship between centers and margins; the relationship
between the state and justice; and the relationship between what she calls “threat and
guarantee.” But “between” has a double meaning here, which is why Poole’s study of
checkpoints informs the anthropological understanding of law in Latin America more
generally. She argues that firmly established categories like the “state” or “law” must
be seen as mere framing devices rather than actual references to sites where social
practice unfolds. As she says, the more important set of anthropological questions
concerns that “highly mobile, tangible, and embodied space through which the power
of the state is felt as [a] slippage” in which “the legitimacy of the state is brought into
contact with the sometimes arbitrary forms of power that underwrite the sanctity of
law” (2004:36). For Poole the law’s constitutiveness in Latin America is expressed
through the delicate interplay between contexts of grave danger and the promise of
the state to provide its citizens certain guarantees; as I have argued, this dynamism can
be tracked anthropologically through the categorical “clash” between the legal and
illegal. But in both cases the law’s categories are rendered, in Poole’s felicitous
phrasing, “illegible and opaque” (2004:37).
All of these central findings from anthropological studies of law in Latin America
have admittedly been rendered quite abstractly; this is partly due to the fact that
relatively few people have drawn out the important theoretical implications from the
small but growing body of Latin American legal anthropology. But there is some-
thing else. Because anthropologies of law in Latin America have been, as I have
argued, often pursued in the context of profound struggles for social justice and, in
some cases, self-determination, it is all the more important that alternative concep-
tual frameworks for understanding law receive sustained treatment; that is to say, my
position here is that a more well-developed anthropological approach to law in Latin
America can play a role in movements for social change. As with the theoretical
implications described above, this more programmatic contention will become
clearer through an analytical survey of the range of current key topics within Latin
American law.
NETWORKS OF LAW
There is a specialization within the anthropology of law more generally that studies
“legal pluralism”: the existence of multiple legal systems within the same juridical and
social spaces (see generally Merry 1988; see also Griffiths 1986; Guevara Gil and
Thome 1992). Most of the influential ethnographic descriptions of legal pluralism, as
well as theoretical frameworks for understanding these processes, are associated with
regions outside of Latin America. This is because “official” legal pluralism was never
adopted either during the colonial era, or by the newly independent nation-states.
Official legal pluralism, which characterized much of colonial Africa and southeast
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218 MARK GOODALE
Asia – most notably Dutch Indonesia – was a specific approach to “managing” large
amounts of colonial territory and large indigenous populations. Typically, two official
legal systems were allowed to function simultaneously, with certain spheres being
within the jurisdiction of colonial courts – criminal and commercial matters, for
example – while other, more “cultural” or “local” areas were delegated jurisdictionally
to what came to be understood as “customary law”: family affairs, real property, mar-
riage. But apart from the effect de jure legal pluralism had in prolonging colonialism
through the official oversight and indirect control of local legality, it also resulted in
the consolidation of intralocal and intraregional legal “systems” by forcing multiple
and often culturally quite disparate populations to legitimate their traditional legal
practices within what was inevitably a limited number of official customary legal insti-
tutions. Rather than preserving local legality and fostering a degree of autonomy,
official legal pluralism actually led to the transformation, or in some cases, destruc-
tion, of real normative diversity in areas that came within its ambit.
In Latin America, by contrast, de jure legal pluralism was never prevalent, because
colonial governments – and the nation-state after independence – were never able to
create unified, but multiple, legal orders as part of wider strategies for social and
political control. De facto legal pluralism was the result, in which a plurality of legal
systems, or, in Roberto Da Matta’s formulation, “codes of conduct” (1987:323),
were unofficially associated with different classes and regions, and identified with
urban or rural spaces. This fact partly explains why studies of legal pluralism have never
been common within Latin America. After the Conquest, “law” became by definition
“state law.” Although as a matter of social practice, people continued to use alternative,
unofficial legal structures for certain claims, at the same time people were also forced
by circumstance to participate in governmental legal processes, even if at times such
participation was politically strategic rather than purely “legal.” Moreover, states in
Latin America had every reason to deny the existence of legal pluralism within their
borders; to do otherwise would mean to acknowledge a basic weakness in national
sovereignty, which depends, among other things, on internal legal hegemony. But the
difficulties with understanding legal pluralism in Latin America become compounded
because those who have a stake in alternative legal structures – often rural people liv-
ing at the margins of national legal consciousness – likewise have every reason to deny
the existence of what is for them often the “real” law, a law that serves not only to
resolve their conflicts, establish and reaffirm their rights and obligations, etc., but also
serves as a potent symbol of community resistance to state power (see Goodale 2002a,
2002b, 2008; Rappaport 1994; Santos 1995).
In spite of these difficulties, an anthropological interest in legal pluralism in Latin
America has increased, particularly over the last 15 years. This movement has come
primarily from scholars (Goodale 2008; Iturralde 1990; Izko 1993; Pasara 1988;
Santos and García Villegas 2001), self-representing Latin American social and political
activists (Macas 1994) and indigenous intellectuals (Conklin and Graham 1995; Hale
1997; Stephen 1995; Wright 1988; see also Varese, Delgado and Meyer, this volume),
although one can look to the constitutional amendment processes in Colombia (in
1991) and Bolivia (in 1994–99), for example, as evidence that even political elites in
some countries were willing to consider the possibility that legal pluralism existed
within their borders (Van Cott 2000). And this clearly is a promising avenue for future
research and analysis, in particular because the international and transnational legal
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LEGALITIES AND ILLEGALITIES 219
regimes that are becoming increasingly influential in Latin America – e.g. international
human rights, commonly ratified instruments like International Labor Organization
(ILO) Convention 169 – contain provisions that recognize and legitimate the fact of
multiple and equal normative systems within sovereign nation-states.
The problem, however, is that most existing models for understanding legal plural-
ism are inadequate for Latin America. Because the study of legal pluralism is indelibly
associated with the historical conditions of de jure legal pluralism in colonial Africa
and southeast Asia, analyses have tended to impose an artificial and simplistic dichot-
omy on the actual complexity of legality within particular regions. This is reflected in
a long line of debates over “legal levels” or the relationship between “state law” and
“customary” or “folk law.” Although it is doubtful whether these debates produced
anything of enduring analytical value even for the specific cases to which they were
directed, there is no question that they can tell us almost nothing about legal plural-
ism in Latin America. But instead of categorizing law into “levels” or distinct and
competing “systems,” an anthropological approach to law in Latin America shows
that legality is distinct in its totality in relation to other (nonlegal) systems of meaning,
yet internally diffuse, nonlinear, and, despite all ideology to the contrary, nonhierar-
chical. How, for example, would it ever be possible to assert that “state law” – which
is itself not a monolithic normative entity – is paramount in a country like Bolivia,
where for a large majority of the population symbols of state law are at best only one
part of much larger legal repertoires, one source of normative tools in what is a highly
dynamic marketplace of legal ideas?
Perhaps the best alternative framework for understanding legal pluralism in Latin
America is that used by Boaventura de Sousa Santos (1987, 1995) to describe legality
in Pasagarda, a pseudonymous favela in Brazil. His approach to legal pluralism is
described as “interlegality.” As he explains, this
is not the legal pluralism of traditional legal anthropology, in which the different legal
orders are conceived as separate entities coexisting in the same political spaces, but rather,
the conception of different legal spaces superimposed, interpenetrated and mixed in our
minds, as much as in our actions, either on occasions of qualitative leaps or sweeping
crises in our life trajectories, or in the dull routine of eventless everyday life. We live in a
time of porous legality or of legal porosity, multiple networks of legal orders forcing us
to constant transitions and trespassings. Our legal life is constituted by an intersection of
different legal orders, that is, by interlegality … Interlegality is a highly dynamic process,
because the different legal spaces are nonsynchronic, and thus result in uneven and
unstable combinations of legal codes (codes in a semiotic sense) … Such a conception of
legal pluralism and interlegality calls for complex analytical tools. (Santos 1995:473;
emphasis in original)
The move to interlegality provides anthropologists and others with a theoretical tool
that is nearly complex enough to capture the multiplex, multidimensional reality of
legal pluralism in Latin America; in particular, as posed by scholars such as Boaventura
de Sousa Santos, interlegality assumes that fine distinctions between legal practice and
legal imaginings are false distinctions. Anyone who has spent much time conducting
participant-observation in legal forums – whether state courts or the house of a village
official who has legal responsibilities – knows that such sites are more than just the
locations people must come to in order to have disputes resolved. They are not just
legal “spaces,” i.e. locations where law is done. These areas are legal “places,” sites of
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220 MARK GOODALE
negotiation over legal (and nonlegal) meanings and identities, places that are
understood by legal actors often primarily through their emotions and memories of
rights and obligations. Indeed, by conceptualizing law in such terms, it is often
difficult to see where law begins and ends. A Latin American legal pluralism
conceptualized in this way is both permanently shifting, and potentially subversive.
SUBALTERN POLITICS IN A NEW REGISTER: RIGHTS MOBILIZATION
AND THE COMING OF RIGHTS NGOS
Over the last 20 years, there has been a profound transformation in the way subaltern
populations in Latin America understand the nature of a set of long-term problems,
locate themselves socially and morally in relation to these problems, and envision the
possibilities for redressing them. At broad levels there are patterns to social problems
throughout Latin America: rural people constantly struggle to maintain access to
productive land and other basic resources, like irrigable water; hereditary, military,
and business elites conspire to preserve stark inequalities in wealth; the military is
employed by elites against those who would organize to protest economic and social
injustice; a rural to urban continuum exists in which rural areas – with the exception
of those which are unusually productive for some reason – are systematically deprived
of a proportional share of national resources; in nations with large indigenous or Afro-
Latin American populations, endemic racism and a discourse of whiteness reinforce
ethnic and class hierarchies; and in large cities, parallel sovereignties have emerged
within which coteries of the marginalized and oppressed seek to meet basic human
needs at the same time they strive for more – a modicum of dignity.
For much of the 20th century, there was really only one type of framework within
which programs for social change in Latin America had any meaning and validity:
those derived from anticapitalist social theory, whether Marxist, socialist, anarcho-
syndicalist, social democratic, Maoist, Trotskyist, or social millenarianist. Despite the
range of expressions, what united these attempts to alter the direction of Latin Ameri-
can economy and society was their fundamental antiliberalism. Motivated, in part, by
the violence of the civil, guerrilla and counterinsurgency wars of the 1980s and 1990s,
however, subaltern populations across the entire range in Latin America have come to
anchor their programs through appeals to the inherently liberal language of human
rights (see chapters by Rojas-Perez and Sanford, this volume). At the same time, how-
ever, indigenous movements in Mexico, Bolivia and elsewhere have also actively inter-
vened to reshape human rights discourse through concepts of economic and collective
rights, which serve as a check on the ontological (and ethical) primacy of the indi-
vidual as the bearer of rights in liberal philosophy, and challenge the absolute necessity
of understanding and then resolving social problems in terms of individual rights and
obligations.
In other words, the same discursive spaces that are created by the growth and influ-
ence of human rights in social practice – that is, apart from the enactment of interna-
tional human rights instruments in national legislation – simultaneously reinforce a
preexisting normative framework in which rights are the foundation for the accumula-
tion of private property. The implications of this discursive tension have already
become apparent in one area: the complex relationship between the rights of
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LEGALITIES AND ILLEGALITIES 221
indigenous peoples and intellectual property rights (see Greaves 1994; Hayden 2003;
see also Hayden, this volume). While indigenous peoples throughout Latin America
have adopted a rights framework to prosecute old claims by asserting rights in culture,
land, and local knowledge practices, this same framework provides the legitimacy for
normalizing such countervailing developments as the rise in transnational biomarkets,
the capitalization and then commodification of indigenous knowledge – e.g. the infa-
mous Kayapo–Body Shop experiment (Turner 1995) – and, in what amounts to the
dissolution of the orthodox legal distinction between persons and things (Pottage and
Mundy 2004), the movement toward reifying (and thus commodifying) the blueprint
for human life itself.
Yet despite the unacknowledged dilemma created by the emergence of human
rights discourse as a supplemental paradigm for struggle and resistance in Latin America,
anthropologists, and their co-subjects and collaborators have used this reframing of
social problems to transform more than simply the possibilities for emancipatory social
practice. There has also been a corresponding shift in anthropology’s relationship to
human rights more generally, which was originally stimulated by research and activism
in Latin America. The best example of this can be seen through the institutional history
of the American Anthropological Association’s Committee for Human Rights, which
emerged through the activities of a small group of professional anthropologists, indig-
enous activists, and nongovernmental associations active primarily in indigenous
Amazonia. The culmination of these activities was the 1999 Declaration on Anthro-
pology and Human Rights, which, apart from its epistemological significance for the
anthropological engagement with human rights, reflected the fact that the A A A had
become a human rights NGO active in Latin America, and elsewhere (A A A 1999).
This development reflected a major transition within professional anthropology after
several decades of anthropological indifference to human rights following the defense
of a cultural relativist position vis-à-vis human rights in the 1947 AAA Statement on
Human Rights (A A A 1947). This shift by the world’s largest association of professional
anthropologists paralleled much more modest, but similar, collaborations between
anthropologists, human rights activists, and local leaders in places like Mexico, Bolivia,
Colombia, and Guatemala (see Sanford, this volume).
Although very few anthropologists have made the emergence of human rights dis-
course in Latin America a topic for ethnographic and critical inquiry, rather than
simply a vehicle for ethical engagement (but see Goldstein 2004; Goodale 2002a,
2008; Postero 2007; Speed 2007) there are now several important new spaces for
investigation. First, anthropologists of law in Latin America must study the mid-range
effects of the rise of human rights discourse, particularly to see whether or not subal-
tern populations are experiencing greater exploitation at the same time as they employ
what can be a powerful legal framework for the recognition of local grievances. Sec-
ond, because the rise of human rights discourse in Latin America has been so expo-
nential – facilitated in part through the ongoing intervention of an array of (mostly)
western European NGOs – anthropologists have the opportunity to use research and
reflection on these shifts in legal consciousness and identity in order to contribute to
wider understandings of the globalization of human rights more generally. In this
sense, like Sally Merry’s (2006) work on “localizations” of human rights in other
parts of the world, anthropologists can study the finely grained effects that are the
result of the introduction and reworking of the transnational normative framework of
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222 MARK GOODALE
“human rights.” Finally, anthropologists of law in Latin America who study human
rights will continue to develop new epistemological contexts within which research
and nonacademic ethical engagement relate to each other in innovative ways.
LEGAL ETHNOGRAPHY IN UNSTABLE PLACES
If law in Latin America can be usefully understood as a system of representations that
mediate the production of a range of other social meanings, then anthropologists
should also be able to provide a sense of the contexts in which law functions. In a
recent volume that explores the uncertainty, and possibility, associated with ethnogra-
phies of “unstable places,” Kay Warren (2002) argues that an anthropology of “frag-
ments, instabilities, and incomplete transitions” is an innovative response to the
decentering of the nation-state and a corresponding rise in ethnic violence, sociocul-
tural transgression, and the volatility of transnational capital and labor markets. An
anthropology of instability requires researchers to resist the tendency to become
“complicit in the misrepresentation of normative … politics as stable systems.” To do
this, anthropologists must continue to scrutinize intellectual conjurings that produce
a “world of bounded units,” whether they appear as islands of political authority, or
as the more circumscribed planes of culture (2002:380–381). The result is an ethnog-
raphy of interstices: the spaces between periods of political consolidation and
(neo)liberal hegemony, the gaps that open up within liberalism’s master narratives.
And an engaged anthropology reconceptualized in this way is also deeply, though
critically, collaborative (Hale, this volume); anthropologists and other social actors
work together to create new expressive genres that “capture the contradictory cur-
rents of change, changing social fields, and the failure of state institutions and older
models of citizenship in the face of difficult transformations and transitions” (Warren
2002:391).
The critical pursuit of instability also demands that anthropologists reconsider the
assumption, which anthropological theory – and social theory more generally – has
tended to share with liberal ideology (in Latin America and elsewhere), that social
identity across the range rests on the intactness of social and political structures.
Although this point is not typically framed in precisely this way, the idea is central to
anthropological studies of political and social violence in Peru (Degregori 2003), the
constitution of collective memory in the wake of profound social disrupture (del Pino
2003; Sanford 2003), and in attempts to use anthropology to come to terms with the
“fragmentation of experience” that accompanies a near-permanent sense of public
helplessness in the face of protracted conflict (Jimeno 2001). Moreover, as Warren
confirms for Guatemala, social actors throughout Latin America are compelled to
perform culture within a state of permanent and “dramatic political change,” and this
constant structural dynamism rises to the level of social-ontological transformation, so
that the practice of everyday life can no longer be measured by degrees of distance
from a kind of social or political steady state, but must be reconceptualized in such a
way that “dramatic” change is allowed to occupy a benchmark role in both ethno-
graphic research and sociocultural theory. It should be emphasized that this frame-
work for studying and reflecting on the relationship between social practice and
political change is not a version of historical materialism in postnationalist clothing;
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LEGALITIES AND ILLEGALITIES 223
rather, it reflects the synthesis of a maturing critique of transnationalism and
translocalism with a broader reconsideration of ethnography as the methodology of
social transformation par excellence (see Goodale 2002a, 2006a, 2006b).
But the argument for an ethnography of instability in Latin America is not simply
innovative as applied to engaged research in the political spaces “crossed by colonial-
ism, war, and [the] … new national and transnational arrangements” (Greenhouse
2002:11). An ethnography of instability is also an argument for a radically different
framework within which legality in Latin America can be understood. More obvious
recent events in Latin America – the Americanization of the longstanding civil war in
Colombia, the fight between the Brazilian government and indigenous peoples over
resource extraction in the Amazon, the struggle against child plantation labor in the
Dominican Republic, the campaign of the EZLN (Zapatista National Liberation
Army) to rethink how politics is done, or the Bolivian electorate’s rejection of an
unholy alliance between national elites and transnational capital – suggest new insta-
bilities associated with failed political and economic transitions. The idea of perma-
nent incompleteness, however, also gives new, even if paradoxical, meaning to the
anthropological account of law. Despite the fact that official state and jurisprudential
orthodoxy maintain that “law,” to be legitimate, must serve as the bedrock that sus-
tains Latin American societies at their most basic levels, especially when all else fails or
is in transition, law in contemporary Latin America is as fragmentary as political and
economic systems. Because law and legal institutions are fragmented, they are neces-
sarily unstable; in other words, law in Latin America is dynamic (not the timeless
codification of natural or divine principles), multiplex (not monolithic, as in the “rule
of the law”), and contingent (not the predictable result of either political or intellectual
processes).
Yet I diverge here from an analysis of instability in Latin America that locates this
social fact only in relation to the periods of “large-scale drama” that characterize post-
conflict societies or those still struggling with the dislocating effects of post- or neo-
colonialism. I argue instead that fragmentariness in Latin America reflects a basic fact
of legal ontology, and one, moreover, that is most readily apparent to the anthropolo-
gist studying the lived experience of law through its many trajectories, most of which
are not spectacular, but are rather simple extensions of ordinary social actors’ identities
and interests. Indeed, to the extent that legal stability is created in Latin America, it is
often to be found in periods of political and social high drama, as, for example, during
the epochs of military rule, when an artificial and (often) brutal legal singularism is
imposed on populations. This is not to say, of course, that everyday life in Latin
America should not be understood through ethnographies of the extra-ordinary, par-
ticularly when the exceptional and spectacular are actual expressions of profound
social trauma and disarticulation, or when social actors transform them into what
Warren describes as the “symbolism of subordination” (Warren 1989). But if instabil-
ity is to serve as a replacement framing device for ethnographic analyses of the warp
and woof of law’s registers in Latin America, it must be instantiated where it is most
explanatory, which is at the points where law intersects with social practice, or, even
more, where law becomes a basic articulation of it.
Legal ethnography in unstable places in Latin America – which are, to be clear,
simply the places were law is done – reveals perhaps something even more unexpected
than the fact that instability describes the essential condition of law from Columbia’s
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224 MARK GOODALE
constitutional court (García Villegas 1993) to the creation of sociolegal categories in
Chiapas (Collier 2002). It also suggests that the permanent fissures created by imper-
fectly integrated legal jurisdictions, the practical impotence of centralized orthodox
jurisprudence, and the impact of transnational legal and human rights discourses do
not simply lead to a kind of neutral structural dynamism. Rather, these legal interstices
also emerge as spaces of intense (if undramatic) contestation and latent social trans-
formation. This last point needs underscoring: although it is true that the fragmen-
tariness of law in Latin America creates ever present conditions for subaltern resistance
to large-scale structural injustice, equally important is the fact that legal instability
constitutes the means through which what Laura Nader (1981) has called “little
injustices” can be meaningfully addressed in thousands of rural hamlets, urban favelas,
and neighborhood associations and sindicatos, as well as in the offices of provincial
police officers. In other words, the anthropology of permanently incomplete legal
transitions is also an anthropology of reversal, in which indigenous peoples, campes-
inos, miners, and the urban poor are able to employ a wider range of legal strategies
than their elite counterparts, whose experience of law is often more constrained by
geography, social class, and the burdens of privilege. This is not to say, of course, that
in times of extraordinary social drama the subaltern do not find themselves subject to
the often violent power of a suddenly rigid set of legal instrumentalities. But this pos-
sibility, I would argue, only serves to underscore the more general pattern of legal
disarticulation that provides historically marginal populations in Latin America with
the ability to position themselves strategically, reinforce social identities, and to push
beyond the constraints of region and nation to engage with potentially empowering
transnational ideas and practices.
THE CONSTITUTION OF LAW
Recent anthropological studies of law in Latin America contribute to an emergent
framework within which the relationship between legality and illegality, order and
violence, urban and rural, and even center and periphery, can be more productively
understood. Legal identity in Latin America, like identity more generally, is consti-
tuted in part through the juxtaposition of formal oppositions. Orthodox legal doc-
trines reflect this conceptual alignment in the way that social acts are judged and social
actors located in relation to standards of right conduct; that is to say, people are nor-
matively either inside or outside the law. I should emphasize that this is not an empir-
ical description of actual social practice, of the complex ways in which people move
between these two normative poles, so that one can be both inside and outside the
law, as Olivia Harris and contributors to her edited volume have argued (Harris 1996;
see especially Bouysse-Cassagne 1996). But the constitution of legal identities is a
social process that unfolds disjunctively: the seal of a notary public is either properly
affixed to a contract for the sale of land, and thus the document – and associated
transaction – is “legal”; or the stamp is improperly affixed (or omitted or secured at
the wrong time in an established sequence) and thus the document (and underlying
transaction) is rendered “illegal.” A young man is accused by hamlet authorities in
Bolivia’s Norte de Potosí of disturbing the peace by brawling during a recent fiesta,
during which a serious injury results. The young man is either brought, against his
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LEGALITIES AND ILLEGALITIES 225
will if necessary, to the provincial juzgado de instrucción, where his case is heard after
a police investigation, in which case he is “inside” the law; or hamlet authorities
( especially the corresponding ayllu’s jilanqu) consider his actions without bringing
them to the attention of state officials, and, if he is found to be at fault, he is directed
immediately to the hamlet whipping post, where he is vigorously whipped. In the lat-
ter the young man’s social identity has – even if temporarily – been reestablished
outside and against the law. Finally, a suspected thief is caught by locals in one of São
Paulo’s sprawling favelas. He is either taken to the nearest police precinct, which con-
stitutes the “legal” response and locates the suspect within the law; or the man is
dragged to the nearest lamppost and hanged by the neck – an act of normatively
illegal community rage.
Yet even though law in Latin America is constituted dialectically, through the con-
tinuous contrast between the spaces of the legal and the spaces of the illegal, the
actual social-normative content created through this process is not structurally deter-
mined, historically inevitable, or even fixed in relation to the two basic points within
the broader system of representation designated as “law”; acts or norms that are
considered “legal” can become “illegal,” and vice versa. What is most important
about this admittedly polemical framework within which ethnographic studies of law
in Latin America can be most innovatively understood is that it reconceptualizes the
relationship between legality and illegality without denying the discursive power of
these seemingly diametrically opposed categories for ordinary social actors. In other
words, the sociolegal theory grounded in current studies of law in Latin America
makes the process through which legality and illegality emerge as opposed categories
a main topic for ethnographic research and critical analysis. At the same time, it poses
these categories as actually bound dialectically within the same normative system of
representation.
To say this is not, however, to impose a rigid analytical structure on what is actually
a much more complicated set of categorical relationships, which are, as I have already
argued above, in constant relative motion, so that the legal and illegal as intercon-
nected normative spaces are never finally established; they are, to connect with the last
section, permanently incomplete. But this understanding does require a broader and
less ideological view of some very consequential moments of violence and disrupture
in Latin America. It also demands a clearer analysis of the way crimes and punishments
are not simply predictable responses from actors either inside or outside the law, but
are rather expressions of more fundamental networks of economic and social power
that depend on the apparent permanence of legal concepts and categories.
A framework for studying and reflecting on law’s meanings in Latin America that is
reconceptualized in this way also demonstrates how difficult it is to adopt an approach
that is overly concentric, in which social acts and actors are located at various absolute
distances from “the law” – those ideas and practices that conform to a set of norma-
tive ideals. The possibilities and challenges of this analytical realignment can be seen
through recent accounts of what, from the orthodox perspective (not reflected in the
studies themselves), appear as actors or movements at the margins, meaning located
at the blurred boundary that separates the legal from the illegal. Whether the particu-
lar case study involves the emergence of armed peasant patrols, like Peru’s rondas
campesinas (Starn 1999), or the surge in linchamientos/ajusticiamientos (“lynch-
ings”) in Bolivian periurban barrios (Goldstein 2004), or the growing sense of
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226 MARK GOODALE
“ security as a private matter” among subalterns in Brazil’s urban shantytowns ( Caldeira
2001), in each instance the “law” opens up to reveal interconnected and diverse types
of normative praxis, rather than examples of social action that can be easily located in
relation to “law.”
A good recent ethnographic account of the way law is constituted dialectically in
Latin America is Daniel Goldstein’s compelling analysis of lynchings on the outskirts
of Cochabamba, Bolivia, in which performative violence enacted in the local (and,
through the media, national) public sphere expresses both subaltern resistance and
conformity. As Goldstein explains:
Vigilante lynchings in Cochabamba are more than just attempts at vengeance, efforts to
satisfy individual or collective psychological cravings for reprisal…They also must be seen
as expressive moments in the lives of people historically silenced, denied avenues to
communicate their demands or to lament their conditions to an audience that might be
able to offer them official redress. Lynchings in this context are not merely parallel justice
systems intended to substitute for the inadequate enforcement of state law; nor can they
be seen simply as “mob violence”…Lynchings are also spectacles, intended to catch the
eye of an inattentive state and to perform for it visually and unmistakably the consequences
of its own inaction. (2004:182)
What emerges from Goldstein’s analysis is a complicated portrait of social and nor-
mative life among Cochabamba’s poor and disenfranchised. On the one hand, com-
munity members in the district of Villa Pagador know that lynchings of suspected
criminals violate national law, and they also have an acute sense that lynchings are taken
by the Bolivian middle classes and elites as evidence of the “inherent viciousness of the
people” who employ them to dramatic effect. But on the other hand, as in other parts
of Bolivia – urban and rural – where the state and its instrumentalities have all but been
evacuated, people in Villa Pagador have been left to create strategies of social control,
and constitute modes of practice with real normative status, through means that are
both “illegal” and “legal” at the same time. It is true that the most narrowly defined
conception of “law,” that is, one based on legitimate state institutions capable of
enforcing rules, would deny any normative validity to the mobilizations of community
violence that Goldstein describes. Yet an orthodox and jurisprudential approach does
not bring us any closer to understanding the meanings of lynching, nor their function
in what could be understood as a locally emergent ethical theory (an ethical theory that
is far removed, it is true, from the liberal political theory that animates current Bolivian
policies). Moreover, the community ritual associated with what Goldstein calls “spec-
tacular violence” is highly aestheticized. When a “carnival” of illegality is the method
through which the powerless attempt to create order from chaos, it is clear that the
anthropologist does not gain from pursuing in isolation the discourse of the “rule of
law” or “due process”; more illuminating is to study the system of representation that
encompasses both lynchings and elite responses to them.
CONCLUSION: THE SOCIAL PRACTICE OF LAW IN LATIN AMERICA
Anthropological studies of law in Latin America demonstrate how unproductive it is
for the researcher or cultural critic to artificially distinguish between legal theory – or
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LEGALITIES AND ILLEGALITIES 227
law “in the books” – and legal practice, the unsystematic range of efforts to create
order out of the wide gap between official law and the messiness of everyday life.
Close ethnographic, ethnohistorical, and critical attention to normativity in Latin
America reveals the richness of what is an integrated sociolegal practice, in which
social actors create locally meaningful codes of conduct and systems of values that are
derived from multiple – and contested – conceptual sources, including transnational
legal regimes, national legal codes, “customary” legal principles, and, as important,
what can be understood as a perpetually emergent “vernacular jurisprudence.” These
diverse theoretical strands are woven together through the course of individual and
collective agency, a social process that is both potentially emancipatory and fraught, at
times, with danger. In other words, in order to better understand the social practice
of law in Latin America, anthropologists, activists, and others must continue to search
for the meanings of “law” where they are to be found: at the intersections of “ legality”
and “illegality,” legal theory and practice, violence and peace.
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