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Justice at the Limits of Law

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Justice at the Limits of Law

sera justicia
My first encounter with the complicated imaginaries of justice in Latin Amer-
ica was deceptively understated. The year was 1998, and I had just begun ethno-
graphic research far from the centers of ongoing civil war, ethnic atrocities, and
indigenous mobilization. The sleepy capital of Sacaca in the province Alonso de
Ibañez in Bolivia’s norte de Potosí was notable beyond its borders both within Bo-
livia and abroad primarily for its tinkus, rituals that brought hundreds of campesi-
nos from their hamlets to town to fight one another on important days in the
yearly agro-religious calendar. But outside of these periods of relative chaos, the
region was marked mainly by its quiet poverty and simmering land disputes, low-
grade local political power struggles, and both geographic and symbolic isolation
from the national consciousness.
Sacaca was (and still is) a classic colonial reducción, one of the hundreds of
Spanish-style towns that were the result of Viceroy Toledo’s reforms of the six-
teenth century through which the empire’s indigenous population was forcibly
“reduced” from their dispersed pre-Columbian settlements into civic spaces that
reflected the colonial Spanish ideal of civilization. The reducción typically featured
a central plaza surrounded geometrically by the symbols of sacred and secular
power: the mayor’s administrative building, a police station, a legal court, perhaps
an office of a notary public, and, most important, the church. In most of Bolivia’s
rural provincial towns like Sacaca during the ancien régime,1 the legal court was a
court of first instance with a single judge and two other functionaries: a secretario,
whose primary task was to record court sessions on a typewriter, and a right-hand
man (always a man) called an actuario, who kept the records, opened and closed
the court sessions, received visitors to the small waiting room, and maintained the
court’s calendar. As in Sacaca’s court—technically a juzgado de instrucción—the
docket in Bolivia’s rural courts of first instance was light—perhaps one or two
conclusion
Justice at the Limits of Law
Mark Goodale
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hearings a week; weeks would often pass without any cases on the court’s calendar.
Even given this relatively light workload, the official court vacations—around To-
dos Santos, Christmas, Carnival—were disproportionately lengthy. During Carni-
val, for example, the court was shuttered for an entire month.
But when the court was in session, it always began with the same ritualistic
process. The parties gathered in the courtroom, which also doubled as the judge’s
chambers, a small room that contained an office desk and chairs arranged along
three of the walls for witnesses, victims, the accused, and different kinds of legal
counsel. The actuario would place himself next to the judge’s side at a small table
with his manual typewriter positioned in front of him. Some minutes after every-
one was in place, the actuario would announce, “The court of Dr. [X] is now in
session. Please rise. At that moment, everyone would stand, the door would open,
and the judge would enter. Immediately, everyone in the room would make the
ancient “sign of the cross” with their thumb and crossed forefinger, which they
held in front of their faces. After collectively taking the oath, each person in the
room was obligated to kiss a large crucifix that was placed upright on a stand at
the front of the judge’s desk. After each person in the room kissed the cross, he or
she would intone solemnly, “será justicia”—“there will be justice.
This terse phrase, which can be heard in legal processes and courts through-
out Latin America, always intrigued me, in part because of the use of the simple
future tense, which carries with it a sense of certainty that has important implica-
tions for how formal legal procedures are conceptualized in Latin America. But
more than anything, the phrase lingered in the analytical imagination because,
at least in Sacaca, it was the only time you heard the word justice spoken, even by
those who worked at the court. Justice was just a word to be intoned, mechani-
cally, unthinkingly, even somewhat begrudgingly, rather than something concrete
to be achieved, whether in the form of a specific legal resolution or, more gen-
erally, in the form of righting past wrongs, fighting against impunity, or acting
to change unequal social or economic conditions. At a certain point, I asked the
judge directly what he thought justice meant? A man not given to deep analyses,
he considered for a moment and then replied, “Work.” He did not mean work in
the sense that justice is an abstract ideal that one must constantly work toward—a
sort of clichéd understanding that hovers over our preoccupation with justice as a
foundational keyword (Williams 1976)—but work as in his job as an obscure juez
instructor assigned to the remote margins of Bolivian judicial and social life, as far
from the clubby Ilustre Colegio de Abogados as a Bolivian lawyer could get. As
least for this particular rural Bolivian judge, “será justicia” meant “my dreary life
here in Sacaca will go on, and on, and on.
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Later, during my research on law and culture in Bolivia, I would confront a
similar problem with the multiple possible meanings and practices of human
rights. However, it was soon clear as a question of both ethnographic research
and ideological history that human rights, as an admittedly “protean” (Baxi 2002)
referent, nevertheless functioned in qualitatively different ways than did justice.
Justice remained vague as a social signifier and remote in practice. Human rights,
by contrast, evoked the flood of non-governmental organizations (NGOs) to rural
Bolivia throughout the 1990s and early 2000s; the debates at the national level
over the ratification of late-generation rights documents like ILO 169; and the
rearticulation of long-standing social and economic grievances (particularly by
the indigenous movements) in the language of rights, self-determination, and dig-
nity. As a legal-anthropological problem worthy of close ethnographic attention,
human rights was thick, while justice seemed to be either frustratingly thin or
too closely intertwined with the kinds of formal, particularly state, legal domains
that (at that time, at least) had less appeal by contrast as sites of anthropological
scrutiny.
But as Sandra Brunnegger and Karen Faulk argue in their introduction to this
book, the elasticity and apparent remoteness of justice in Latin America—which
must be understood at multiple scales and within multiple registers of social prac-
tice and experience—have had important consequences. Even if the trajectories
of justice have intersected with those of human rights, particularly over the last
20 years, it is the key differences revealed by an archaeology of justice that require
the kind of renewed empirical and analytical focus that the chapters here reflect.
In many ways, the idea of a “sense of justice” captures these differences with preci-
sion. It also underscores the anthropological encounter, in particular, with what
might be described as the “paradox of justice.” Despite its deep, even essential,
heterogeneity (and heterodoxy), within the kinds of phenomenologies of conflict,
resistance, and suffering that are revealed so powerfully across this book’s seven
substantive chapters, one trans-theoretical conclusion emerges more starkly than
others: the fact that justice is associated with various kinds of disembeddedness
but that it is this very character of dis-articulation that infuses the practice of jus-
tice with power, with promise, and with social force within lived experiences. That
is, far from standing apart as an empty referent with little resonance within some
of the most critical moments in contemporary Latin America, the concept and
social category of “justice” has hovered just in the background or, perhaps more
accurately, just in the distance, even as its meanings have resisted easy parsing.
In her wide-ranging ethnography and critique of the first wave of prosecutions
undertaken by the International Criminal Court in Sub-Saharan Africa, Kamari
Maxine Clarke (2009) suggestively adapts the Derridean concept of “spectrality”
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conclusion: justice at the limits of law 205
to explain the diffuse ontology of justice, this hovering just out of reach. A spectral
sense of justice allows us to disrupt, on the one hand, its clichéd, often official,
often legal, invocation that can appear as solid and impenetrable as the almost
absurdly elaborate neoclassical edifice that houses Argentina’s Supreme Court, the
“imagined court” whose own specters Leticia Barrera confronts in her contribu-
tion here. But on the other hand, a spectral reading of justice in contemporary
Latin America creates critical analytical distance between aspiration and teleology.
As Clarke argues, official accounts of justice processes that suggest inevitability or
consequence must be rejected. However, the desire for particular consequences,
the hope for alternative futures, the willingness to embody new social categories
(like “victim” or “perpetrator”2) should be made part of what might be called a
“centrifugal theory of justice,” one in which the spectral and the ideological (“será
justicia”) remain in constant and productive tension. And as Clarke reminds us,
this tension is one that must be always negotiated; indeed, as the chapters in this
book demonstrate, the many facets of negotiation between the spectral and the
ideological provide rich material for a newly conceptualized anthropology of jus-
tice in which the “terms of aspiration must be negotiated, amended, compromised;
through that process, new fictions [of justice] will be derived to meet the memo-
ries of our past and the needs of our pluralist social worlds” (Clarke 2009: 22).
It is in this spirit, therefore, that I make my own contribution to this book with
reference to ongoing research on the relationship between law and social change
in Bolivia; through a selective engagement with the book’s other chapters and case
studies; and, finally, with some more general reflections on the relative poverty
of alternatives—beyond what is becoming a routinized package of neoliberal or
late-liberal reforms and models for good governance and postconflict reconcilia-
tion—for challenging enduring inequality and vectors of marginalization in Latin
America. If Marta Magalhães Wallace can write in her chapter about perceptions
of a “deficit of justice” in the dystopian city of Salvador, Brazil, one can also think
of this lack in another way. Within the steady march in Latin America toward
what James Ferguson (2006) called the “neoliberal world order,” one can hear the
ever so faint tune of alternatives (see, e.g., Escobar 2010; Goodale and Postero
2013). Yet, as a relative question, the sheer marginality of these “alternative mod-
ernizations,” as Escobar describes them, only reinforces the sense that we have all
become, in Harri Englund’s (2006) chilling phrase, “prisoners of freedom.” In this
way, the manifold invocations of and negotiations around “justice” that we find
in this book can be understand as a response to deficit, rather than the reflection
of one, that is to say, an engagement with a paradoxically opaque moral, cultural,
and legal category as a way to create space within which at least the possibility of
[some social good] can be envisioned.
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laws labors lost
The Preamble to revolutionary Bolivia’s 2009 constitution is a masterpiece of
postmodern political literature. If the lines from the iconic 1967 Velvet Under-
ground song promise to show us our true selves—“I’ll be your mirror / Reflect
what you are, in case you don’t know”—then the sweeping claims and hybrid im-
ages that begin Bolivia’s new social contract reflect both the creative possibilities
and normative ambiguity of post–Cold War social change and legal experimenta-
tion. After acknowledging the foundational importance of an indigenous universe
in grounding the Bolivian revolution—an ontology that the Andeanist anthro-
pologist and ethnohistorian Frank Salomon (2001) has described inimitably as a
“unified biological-technological productivity unfolding seamlessly from human-
telluric bonds through matrimonial alliance outward to very wide regional align-
ments and toward cosmological forces” (654)—the Preamble lists the catalogue
of moral values, political objectives, and social principles that will define a “re-
founded” Bolivia. It is an exhaustive list: respect and equality among all; commit-
ment to sovereignty, dignity, complementarity, solidarity, harmony, and equity in
the distribution and redistribution of social goods; living well (the now paradig-
matic “vivir bien,” which is contrasted elsewhere in revolutionary rhetoric with
“vivir mejor,” or living better); respect for pluralism in economics, society, law,
politics, and culture; and collective coexistence with equal access to water, work,
education, health, and housing for all.
But nowhere in the Preamble—which also declares that the Bolivian peo-
ple have “left in the past” the “colonial, republican, and neoliberal” forms of
government—is “justice” invoked. This despite the fact that the lead-in to Bolivia’s
“new history” is deeply anchored in moments in Bolivia’s contested past that have
been traditionally infused with the ideology of injustice and its consequences. As
the Preamble puts it, the revolution was “inspired by the struggles of the past, the
anticolonial indigenous uprising, independence, the popular struggles of libera-
tion, the indigenous, social, and unionist marches, the Water War and the October
War, and the struggles for land and territory.3
Despite the fact that “social justice” is included briefly in another long list of
official revolutionary values and essential state functions and ends (in Articles
8[II] and 9[I]), “justice” does not makes its appearance with any significance until
the new social contract begins outlining the legal dimensions of the new bureau-
cratic structure of the Estado Plurinacional—that is, in Article 179 and later. Here,
within the radical establishment of three separate and ambiguously interrelated
legal systems (the “ordinary” or state, the “agro-environmental,” and the “original
indigenous”), justice is clearly associated to, even synonymous with, law—that is,
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the third bureaucratic pillar of the state, along with the legislative and the execu-
tive.4 In other words, within the structure of revolutionary Bolivia, “justice” has
become delimited and circumscribed; it is no longer a general value or organizing
principle for social action. It is, within the flow of experimental policies and ob-
jectives, simply another way to refer to the mechanisms of state and society (which
can take the form now in Bolivia of distinct “nations”) that are intended to resolve
disputes within forms of governmental organization and social control.
So it is an important fact that Bolivia’s postmodern revolution does not make
the broad framing of justice the anchor of its contested collective imaginary—
whether as an absence, a vague teleology, or an individual value that characterizes
the ideal revolutionary subject. In this way, contemporary Bolivia couldn’t be fur-
ther from the Islamic Morocco that is the basis for Lawrence Rosen’s seminal The
Anthropology of Justice (1989). As Rosen writes:
Everywhere one encounters in Islamic life the idea of justice: Respected figures
are acknowledged for being just; relationships are valued when they partake of
just arrangements; particular historical periods are admired because they were
days when men acted justly. The Muslim concept of justice is thus one of those
domains in which a host of social, political, and ethical ideas come into uneasy
coalescence. (74)
In this conceptualization of justice as the pervasive, even elemental, force in
Islamic Moroccan life, Rosen explains that rights—whether human, collective, or
divine—are not the central normativity. As he puts it:
It is not rights that are at the center of Islamic justice, for no one expects rights
to be recognized that are not granted by God or forcefully ensured by networks
of obligation. Rather what is central is the process by which one’s claims may be
validated before the community in accord with local practice and the attestation
of people who with their own eyes know what is so and will not risk their
credibility as allies by refusing to say it. (74)
This is a multivalent and entirely anthropological account of justice, but I dwell
on it at some length for two reasons that are relevant here. First, even though the
essence of Rosen’s anthropological theory of (Islamic) justice has its basis in the
social performance of legitimacy, through which people make claims and have
these claims publicly acknowledged as valid, it is nevertheless true that justice in
this sense is circumscribed by the boundaries of legal disputes within formal insti-
tutions. But second, and more bedeviling, is the fact that although Rosen embeds
his anthropology of justice in the conceptual and comparative analysis of a wide
array of Arabic legal, social, and religious terminology, he does not do the same
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with the first principle: “justice.5 Rather, the sense of justice emerges from Rosen’s
descriptions of the cultural performance of Islamic law. In this way, Rosen seems
to be saying, it is neither possible as a matter of anthropological theory nor as
a matter of ethnographic analysis to offer interpretively a generalizable account
of “justice.” Instead, it ranges as an “implicit idea” that suffuses the entirety of
contemporary Moroccan life (38). Elsewhere, he explains that this implicit idea
should not be understood monolithically, but in the plural: that is, “Moroccan
concepts of justice” (45; emphasis mine).6
Nevertheless, we should not take Rosen’s anthropological framing to mean that
the Latin-derived English word justice is necessarily incommensurable with the
Arabic word adl (assuming, of course, that adl was the word that Rosen encoun-
tered repeatedly in his study of Moroccan qadis, or judges). Rather, it is that the
concepts that these words connote emerge from cultural, political, and legal his-
tories that make strict linguistic comparison a fruitless exercise and the attempt
to arrive at a trans-historical conception of “justice” an arid exercise in theoretical
sleight-of-hand.7
It is no wonder, then, to return to the Bolivian revolution, that “justice” is mar-
ginalized within the vernaculars of “refoundation.” On the one hand, as we have
seen, justice is tightly bundled with a particular face of state power, and as with
any vestige of the ancien régime, justice-as-law plays an ambiguous role in the
revolution’s ideology. But on the other hand, because Bolivia’s revolution, as we
will see later, is being instantiated through the mechanisms of law and legal regula-
tion, the broad and necessarily ambiguous conception of justice was supplanted in
the Constitution and within follow-on legislation by a long list of moral-juridical
hybrids whose radicalness was meant to be commensurate with the far-reaching,
even utopian, cosmovisión of Bolivia’s new history. To make this point another
way, Bolivia’s revolutionaries were compelled, for both historical and ideological
reasons, to follow the post–Cold War script, one written in many ways through
the experience of South Africa’s collective reimagination after apartheid (see Klug
2000; Wilson 2001).8 This script compels certain forms of governance and thereby
excludes others; it is open to radical expressions of postmodern revolutionary ide-
ology, while restrictive of the means by which revolutionaries can do “what is to
be done.” Finally, this post–Cold War script demands, above all else, that social
change, even radical social change, take place in terms of the ordering logics of
law—in its creative, legislative, and interpretive modes.
In this way, the meaning and sequence of revolution themselves have under-
gone a profound shift. Rather than putting the pieces of society back together
after a period of disruption, fracture, and violence that produces revolutionary
upheaval, law is now the means through which revolutionary change must be
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conclusion: justice at the limits of law 209
funneled. But is law adequate to the task of revolution? In the next section, I take
up this question more generally. But using the ongoing ethnography of Bolivia’s
revolution as a starting point, the empirical answer is quite mixed. From 2006 to
2009, Bolivia went through alternating periods of social turmoil and the reestab-
lishment of order, often through the use of state power to discredit the opposi-
tion movements. As Vera Lugo writes in his chapter on the relationship between
law and conflict in Colombia, so too in Bolivia was the apparatus of legal gov-
ernance used to both “mobilize emotions” toward a particular understanding of
contemporary history and constrain those emotions that came into conflict with
the state-sanctioned version of revolutionary ideology. After the twin political and
moral catastrophes for the antigovernment right in Bolivia—the atrocities com-
mitted against indigenous pro-government activists in Sucre on the day known as
the “Plaza de Rodillas” (May 24, 2008), and the massacre of unknown numbers
of pro-government peasants in and around the town of Porvenir in the Depart-
ment of Pando in September 2008—the constraining power of law-as-revolution
became even more pronounced as the MAS government consolidated its grasp on
Bolivian history through the mundaneness of legal-bureaucratic implementation.
Much of this revolutionary bureaucracy has developed far below the radar of
both the international media and academic critical scrutiny. For the first, attention
has been occupied with a range of narratives, particularly from hegemonic neolib-
eral vantages points like the United States, in which Bolivia was intermeshed with
Chávez’s Venezuela (itself constructed to fit certain dystopian imaginaries; see
Contreras Natera 2013) as the exemplar par excellence of something described as
the “new left” (see, e.g., Kozloff 2009). Interestingly, this discursive move was also a
key tactic of the antigovernment movement based in Santa Cruz, which often fea-
tured cartoon images in its pamphlets and posters of a menacing figure of Hugo
Chávez in his red beret with a tiny Evo Morales growing from one of Chávez’s
shoulders. But from the academic perspective, the bureaucratization of Bolivia’s
revolution has often been obscured by obsessions with several spectacular social
conflicts after the passage of the constitution in 2009 (e.g., McNeish 2013), or with
Bolivia’s apparently self-contradictory reliance on what is described as an econ-
omy of “extractivism” (see, e.g., Crabtree and Crabtree-Condor 2012: 52–53). In
the meantime, the regulatory interaction between the executive and Bolivia’s new
legislative body, the Plurinational Legislative Assembly, has continued to produce
a steady flow of reglamentaciones, which function even after the refundación to
specify, articulate, parse, and implement the normative and ideological principles
of the constitution.9
It is not a coincidence that Bolivia’s revolution has become encapsulated within
the pages of governmental regulations and that civil servant functionaries have
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taken over from the political visionaries and social leaders who often risked their
lives so that a new epoch could take root. As early as 2007, before the passage of
the constitution, close advisors to President Morales made the case that the revo-
lutionary government was an embodiment of the social movements that brought
it to power; that it was not a representative government, comprised of politicians
who spoke for the people but, rather, that it was the people (Goodale n.d.). In
this sense, legislative acts are seen as the direct expression of power and will by
the social movements whose perspectives are privileged in the new Bolivia, rather
than second-order agreements between political representatives that reflect com-
promise, individual idiosyncrasy, and the culture of legislative governance. So law
is being conceptualized and deployed in several novel ways that provoke a number
of difficult reflections, the most immediate of which is “Is law adequate to the
task of revolutionary embodiment?” That is, is law—in its acknowledged mul-
tiplicities and social expressions—a mode that is capable of both signifying and
instantiating radical social change at the same time? If law absorbs the currents
of revolution and thereafter is reconceptualized in its name, what is gained and
what is lost? And if, on balance, the ethnography of revolutionary Bolivia creates
a balance sheet on which more is lost than is gained in this experimental—if in-
evitable—rearticulation of law’s ways and means, what alternatives exist for better
advancing revolution?
an ode to the ghost of e. p. thompson
In his 1975 study of the infamous Black Act of 1723, the British Marxist historian
E. P. Thompson (1977) revealed—with a fine sense of the ethnographic infusions
of history—the ways in which the rising landed class in early-eighteenth-century
England had turned to the law as a primary mechanism for consolidating class
power. The Act mandated death by hanging for an unprecedented list of offenses
to property, such as appearing on private land armed with the intention to poach
deer, or maliciously killing or maiming cattle, or even “cutting down trees ‘planted
in any avenue, or growing in any garden, orchard, or plantation’” (22). The “black”
in the Black Act referred to the fact that peasant deer poachers and tree bark-
ers at the time had taken to blackening their faces before entering the boundar-
ies of the massive estates of people like Lord Craven and the Earl of Cadogan.
And as Thompson himself acknowledges, it didn’t take five years of painstaking
and frustrating historical research with a spotty archival record to come to the
conclusion that could “in its essential structures, have been known without any
investigation at all” (260)—namely, that judges, the landed gentry, and members
of Parliament worked together to use the law to legitimate their interests and
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conclusion: justice at the limits of law 211
suppress or eradicate the traditions of communal land tenure that were seen as an
obstacle during the emergence of modern Britain.
Nevertheless, the use of law as an instrument of class power was not all Thomp-
son could say about the Black Act. Writing against his own Marxist inclinations,
he was forced to admit that something more was needed, because the simple fact
was that not all defendants were found guilty and executed; some managed to
be exonerated and set free by the very process that was meant to destroy them.
Thompson attributes this slippage in the exercise of class power to what he calls
the “forms of law,” which emerge through a historical evolution that is not merely
the evolution of “relations [of power] translated into others terms, which mask[ ]
or mystif[y] . . . reality” (262). Rather, even the blatant manipulation of law by
elites is subject to shaping and constraint beyond the intention to use law to legiti-
mate the expression of power. As Thompson argues:
Most men have a strong sense of justice, at least with regard to their own interests.
If the law is evidently partial and unjust, then it will mask nothing, legitimize
nothing, contribute nothing to any class’s hegemony. The essential precondition
for the effectiveness of law . . . is that it shall display an independence from gross
manipulation and shall seem to be just. It cannot seem to be so without upholding
its own logic and criteria of equity; indeed, on occasion, by actually being just. (263;
first emphasis mine; second emphasis in original)
Now what most interests me here is not the use of law as an instrument of class
domination per se. Instead, I want to argue that if the “forms of law”—with all
accommodation made for cultural and historical variation—are structured and
structure (see Giddens 1984) in part through logics that are separate from the sta-
tus of law as a particular form of governance, then this applies as much to the pro-
gressive, emancipatory, socially expansive uses of law as it does to uses (as with the
Black Act) that are regressive and exploitative. And if what is being tempered by
the logics of law in cases of “gross manipulation” is precisely the consequences of
the full intention, then what must be tempered in times of revolution is the capac-
ity of law as a mechanism of progressive social transformation. The problem here
is not that the logics of law, if Thompson is right, prevent its effective use to shep-
herd social change or even ground massive projects of “re-foundation,” as in con-
temporary Bolivia. The problem is that if the “judicialization of politics” (Couso,
Huneeus, and Sieder 2010; Sieder, Angell, and Schjolden 2005), or what might be
called the “legalization of revolution,” creates a large enough gap between general
expectations of social, political, and economic change and the mundaneness of
bureaucratic governance, then disenchantment can take root and threaten to rot
the process away from within. As Jessica Greenberg (2014) has recently shown,
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disenchantment is fatal to processes of revolutionary transformation in an era in
which expectations for radical social change have been paradoxically both dra-
matically raised and narrowed at the same time. (Raised, because the transna-
tional culture of revolution, fueled by social media, has made everyone a potential
revolutionary, even if the revolution is directed from a computer keyboard, and
narrowed because the ideological resources for shaping revolution have tightened
after the end of the Cold War, leaving few alternatives that are not, in one way
or another, dependent on the hegemonies of the Fergusonian “neoliberal world
order.”)
This is not an either/or claim—that is, that the necessarily expansive, even uto-
pian, promises of revolution are either met across the board or they are not. If
there’s many a slip ’twixt the cup and the lip, as the adage has it, then, in con-
ditions of social transformation, there will likewise always be space between the
ideological vision toward which structural changes are put in motion and the un-
certain practices of structural change themselves. Rather, it is merely to heighten
awareness to the fact that the consequences of the legalization of revolution are
only partly dependent on the range of contingencies, unintended alignments, and
hidden intentions that have taken up so much of the critical scrutiny of Bolivia’s
radical experiments with postneoliberal state- and society-making; the very fact of
legalization itself acts to contain the revolutionary cosmovisión and thereby change
its meaning.
The ultimate consequences of this dual movement—the first, the Bourdieuian
slippage that is a normal part of social practice, the second, the specific histori-
cal emergence of what Ran Hirschl (2004) would call the “juridification” of rev-
olutionary social relations—are uncertain. At the very least, the evolution from
utopian revolutionary politics to bureaucratic revolutionary practice in Bolivia
is changing the constitution into a different kind of symbol, one that is paradoxi-
cally more remote from people’s lives even as its articles are steadily converted
into policies that affect thousands of citizens. And some Bolivians, including
those in the powerful indigenous movements, have begun to act on their grow-
ing disenchantment by creating the conditions for radical social change outside
the boundaries of Bolivia’s juridified revolution—for example, during the crisis
over the proposed interdepartmental highway through the Territorio Indígena y
Parque Nacional Isiboro Sécure, or TIPNIS (McNeish 2013; Svampa 2013; Villan-
ueva 2012). What is clear, however, as Denyer Willis shows in his study of policing
in Brazil in this book, or as Vera Lugo demonstrates in his chapter on Colombia,
is that alternatives to constitutional revolution, especially those that involve the
direct exercise of extra-legal violence, have a difficult time finding ideological trac-
tion even in periods of extended transition.
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conclusion: justice at the limits of law 213
conclusion: rubber bullets in the center are
real bullets in the periphery (or the empty but
necessary signifier)
If the Bolivian revolution has been structured by a hybridity that does not give
“justice” a central role in the ideology of radical social change, the same is not true
in other regions of Latin America. As we see throughout the chapters in this book,
claims for or against or in terms of justice have become key markers of the per-
petuation of various forms of inequality and violence even in the face of political
reform and economic experimentation. These studies reveal a central tension for
the reconstituted anthropology of justice that this book proposes.
On the one hand, the chapters demonstrate in rich ethnographic detail the ways
in which the capaciousness of justice as a social, moral, and legal category func-
tions to frame various kinds of contentious politics and the pursuit of interests. As
Faulk shows in her study of the aftermath of a bombing in Buenos Aires, different
constituencies first constructed, and then acted upon, a quite different concep-
tion of what justice meant for the same historical atrocity. Each group understood
itself to be pursuing justice as a key mode of social practice, but the meanings of
justice—and therefore their structuring effects on social action—spanned a wide
range. Likewise, in her ethnography of the Argentine Supreme Court, Barrera uses
Haraway’s concept of “partial knowledge” to account for the fact that even among
elite legal actors in Argentina, conceptions of justice emerged from situated and
idiosyncratic positions—social, gendered, even physical, as the architecture of the
court building itself shapes what she calls the “imagined court and the real court.
And in her study of the somewhat obscure, but analytically fascinating, Perma-
nent Peoples’ Tribunal, Brunnegger examines the way conceptions of justice can
emerge in an entirely symbolic way; disputes, in this sense, over the meaning of
justice are thus disputes over the content of public performance of grievances.
But on the other hand, other chapters in this book force us to look past the
epistemological, symbolic, and pluralistic content of “justice” to confront the im-
mediacy of structural violence, historical vulnerability, and what Barros, in his
chapter, describes as the “commodification” of justice subjects. Here, claims for
justice get subsumed within the quotidian struggles of daily life in urban Bra-
zil and the barren region of the Atacama Desert, where transnational extractive
industries corner the market for and access to the precious water that is needed
to keep the mines open and the profits flowing. In these case studies, an overly
academic concern with the discursive dimensions of justice claims would be naive
at best. A sense of justice rebels against what is revealed by the ethnography of sys-
temic racism and the ways in which transnational capital accommodates so-called
08_Conclusion_FN.indd 213 15/02/16 1:02 PM
214 mark goodale
soft law claims only in order to further consolidate control over labor and re-
sources. But the starkness of injustice in these cases is the dominant variable, and
the role of justice institutions—whether national or international—is ambiguous.
Meanwhile, broader structures of inequality, which often span the centuries, con-
tinue to curtail life-chances in ways that are visceral and undeniable. As Magalhães
explains, through an unforgettable ethnographic extract, “rubber bullets in the
center are real bullets in the periphery.
So we are left with this dual formation in the anthropology of justice: the move
to unpack and understand the multiplicity of justice as an ethnographic and so-
cial category and the move to penetrate the level of interpretive analysis—which
often becomes part of claims-making itself—in order to unmask the relations of
production that often lie at the heart of social conflict and chronic immiseration.
But even when we turn to a hard-edged political economy of justice, even when
we are willing, as anthropologists, to confront forms of violence that cannot be
encapsulated within the kinds of symbolic categories we traffic in, a “sense of jus-
tice” nevertheless remains in all of its essential ambiguity. In his chapter, Barros
attributes this lingering uncertainty to what he calls the “unreason at the core of
law,” but better yet is Brunnegger’s more elusive, and thus paradoxically, and more
accurate explanation that the endless search for justice even in the face of a dark
reality is the necessary search for the forever “yet to come.
notes
1. Despite the fact that Bolivia’s revolutionary constitution of 2009 radically restruc-
tures the country’s legal architecture (specifically in Articles 179–205), the effects of these
changes—like the establishment of independent indigenous tribunals and the closing of
“state” courts in regions that have been reorganized into autonomous indigenous zones—
have yet to be felt throughout much of the country as of 2015.
2. For a stunning analysis of how the category of “perpetrator” gets constructed within and
after mass atrocity, see Hinton (2013).
3. Anticolonial indigenous uprising,” phrased in the singular, almost certainly is a ref-
erence to the failed uprising led by Túpac Katari and his wife Bartolina Sisa against the
Spanish royalist forces in La Paz in 1781. After being defeated in battle, Katari was brutally
tortured and then drawn and quartered (see Thomson 2003). The “Water War” refers to a
series of protests in Cochabamba over the privatization of the valley’s water concession, a
disastrous arrangement that was later annulled (see Olivera 2004; Shultz and Draper 2009).
The October War, also known as Black October, was a series of large-scale protests against
transnational natural gas contracts in 2003 that were violently suppressed by the adminis-
tration of Gonzalo Sánchez de Lozada, leading to dozens of deaths and the eventual resig-
nation of Sánchez de Lozada and his exile to the United States.
4. On “community justice” and the Bolivian Constitution, see Goldstein (2012).
5. Among the many keywords from Moroccan Islamic jurisprudence that are translated
and analyzed are ‘aqel (reason), fatwa (scholarly opinion), haqq (truth, reality, obligation),
08_Conclusion_FN.indd 214 15/02/16 1:02 PM
conclusion: justice at the limits of law 215
ijma’ (consensus), m’alem (expert), nafs (passions), niya (intention), qiyas (analogic rea-
soning), and shari’a (Islamic law).
6. The usual Arabic word that is translated in the singular as “justice” is adl. For a com-
prehensive discussion of the historical evolution of adl within Islamic jurisprudence, see
Khadduri (2001). His analysis supports Rosen’s emphasis on the Moroccan concept(s) of
justice as inhering in people as a kind of moral-juridical quality. As Khadduri explains, this
sense of justice was never fully lost, even with the rise of legal and political institutions, so
that “justice” can be still be understood in part as a personal quality that combines truthful-
ness and good behavior (145).
7. To give a sense of how fruitless such an approach to the problem of justice would be, one
need only take a peek into a source like the magisterial Black’s Law Dictionary (1979), which
functions as a comprehensive linguistic and conceptual archaeology of Anglo-American
(and thus, at some remove, French-Norman, and thus, at an even further remove, Roman)
law and jurisprudence. In the entry for “justice,” after giving meanings that refer to legal of-
ficials (“title given to judges”) and the act of exercising jurisdiction—that is, state power—
over a conflict, we arrive at the following: Justice means “proper administration of laws. In
Jurisprudence, the constant and perpetual disposition of legal matters or disputes to render
every man his due” (776). Even though “to render every man his due” begins to gesture
toward something of interest, what precedes it is practically meaningless.
8. Indeed, as my research has uncovered, this trans-historical linkage between the South
Africa of 1994 and the Bolivia of 2009 is more than just analytical speculation. Close advi-
sors to President Evo Morales have described in interviews how and why the first presi-
dential trip taken after the historic elections of 2006 was to South Africa. Movimiento al
Socialismo (MAS) lawyers and political activists wanted to know from their African Na-
tional Congress (ANC) counterparts what lessons could be taken from the South African
experience and applied to the Bolivian. For what these lessons were and how they were put
into practice through the 2009 constitutions, see Goodale (n.d.).
9. See, for example, the new law on child labor, which controversially lowers the age of
work to 10 (under parent supervision) and allows children between the ages of 10 and 12 to
enter into work contracts independent of their parents. The new mining law, which passed
in 2014, restructured national mining relations to bring them in line—problematically—
with the terms of the 2009 constitution.
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Book
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Introduction and front matter to volume coedited with Nancy Postero, Stanford University Press (2013).
Presentation
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Presentation to Department of Anthropology, Martin Luther University, and Max Planck Institute for Social Anthropology
Article
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