Evaluating the usefulness of contemporary ethnoracial law for Afrodescendants in Latin America through the examination of court cases and the appreciation of the state’s processual nature

This special issue, ‘Justice for Afrodescendants in Latin America: An Interrogation of Ethnoracial Law,’ emerges out of the February 2018 international meeting organized at Florida International University in Miami, Florida, which led to the foundation of the Observatory of Justice for Afrodescendants in Latin America (OJALA).¹

The focus of the issue is on the adoption of what we call ‘ethnoracial law’ in Latin America since the late 1980s until the present. Each chapter contributes to this project with the analysis of one or two recent litigation(s) in which ethnoracial legal instruments were used as the case(s) unfolded in their particular national context, both within and beyond the confines of an actual courtroom. The comparative approach that the issue as a whole provides allows for an evaluation of the usefulness (or lack thereof) for Afrodescendants of ethnoracial law in its current forms in the region.

We understand ‘ethnoracial law’ to encompass: 1) the articles of constitutions and special laws that recognize and define identity-based collective rights (generally over land or ‘territory,’ cultural practices, and perspective), and which form what are usually called ‘multicultural legal instruments’ (the right to be ‘pluriversally’ or ‘decolonially’² different); and 2) the constitutional articles and special laws often referred to as 'racial equality law' or 'anti-discrimination law' adopted by constituent assemblies as well as municipal, provincial, or departmental, national, and international or multilateral governing bodies, which criminalize hate crimes and discrimination to guarantee the protection of Afrodescendants’ rights and remedy wrongs they have experienced (the right to be the same). This distinction between the right to be different and the right to be the same has had notable relevance in Brazil, particularly when considering debates about political strategies within black social movements, which often separate representatives of urban and rural communities (see Butler 1998; Hanchard 1994, 1999; Paschel 2016; Pinho 2010; Rapoport Delegation 2008; Sansone 2003; among many others).

The legal cases under scrutiny in this special issue come from a variety of national contexts: Mexico, Honduras, Brazil, Venezuela, Colombia, Ecuador, Peru, Bolivia, and Uruguay.³ Each case involves one of these two categories of ‘ethnoracial legal instruments.’ The pieces by Sofía Lara (Colombia) and Carlos Agudelo (Honduras) are about ‘multicultural legal instruments and institutional/legal processes,’ while the contributions from Krisna Ruette-Orihuela and Dayana Rivas Brito (Venezuela), Jean Muteba Rahier and Jhon Antón Sánchez (Ecuador), Rebecca Lemos Igreja and Gianmarco Ferreira (Brazil), Sara Busdiecker (Bolivia), and Tanya Hernandez (the entire region) are about ‘anti-discrimination or racial equality law.’

Most scholars see these two sets of legal instruments as the product of the ‘Latin American multicultural turn,’ which has been developing from the 1980s onward (see Agudelo 2008, 2010; Cunin 2014; Greene 2007a, 2007b; Hale 2002; Hoffmann and Rodríguez 2007; Hooker 2005; Loveman 2014; Rahier 2012; and most Latin Americanist legal scholars [see below]). They interpret these instruments’ intents as falling within the scope of the multicultural turn because across the region articles prohibiting racial and other discriminations are prominently placed in the constitutional reforms and new constitutions of the ‘new Latin American constitutionalism’ (associated with the multicultural turn), alongside articles about collective rights. In a book highly informed by the Brazilian context, which has recently drawn the attention of many, Tianna Paschel (2016) separates these two sets of instruments, only calling ‘multicultural’ those that deal with identity-based collective rights, while labeling those that remedy discrimination ‘racial equality laws’ or ‘anti-discrimination law.’⁴

Our collaborative, multidisciplinary, and comparative examination of legal cases allows for a detailed and contextualized appreciation of the diverse forms that ‘multiculturalism’ has taken in the quite different Latin American national contexts, at different times. We are aware that every one of these national contexts is always peculiar and corresponds to sui generis historical processes and racial politics. All these national contexts nonetheless remain at all times, above and beyond their historical and cultural individualities, informed and shaped by the dominance of global white supremacy.

Our comparative approach of legal cases uncovers regional trends and contrasts, and reveals how various sociopolitical actors – including entities from civil societies, national and transnational corporations, state agencies and individual state bureaucrats, agents and officials of the justice system (judges, attorneys, prosecutors, law enforcement officers), Afrodescendant individuals and organizations, national politicians and political parties, the military, and others – position themselves inside and outside the courtrooms to facilitate, or instead work to erect obstacles that prevent, the application of specific ethnoracial legal instruments. We are mindful that in virtually all national contexts of the region, too few legal cases have actually come forth, despite the existence of apparently appropriate ethnoracial legal instruments, which might indicate that cases brought to the courts are systematically dismissed by white and white-mestizo judges who might have had limited exposure to such ‘new’ ethnoracial legal instruments. In some cases, it is obvious that some of these judges fundamentally disagree with the very nature of these instruments’ contents and reject most claims of the existence of racism almost as a matter of principle, as they might very well be attached to their country’s myth of national ‘racial innocence’ (see Hernández 2013). This, in turn, brings them to actually believe that anti-black racism is nothing but a foreign invention that has nothing to do with Latin America. Additionally, Afrodescendants have had a limited access – for lack of necessary financial or social capital – to professional attorneys, and the little trust they have in the justice system of their respective country explains why some do not even bother filing a case in court. The growth of black middle classes in the region in an increasingly multiculturalist Latin America during the 2000s and 2010s has changed this situation somewhat, mostly in urban areas where Afrodescendant state bureaucrats, ministers, university students, medical doctors, lawyers, legislators, and other politicians and professionals live. All legal cases involving ethnoracial legal instruments that come forth, therefore (and this counts for the cases discussed in this volume), must be appreciated as cases having benefited from ‘positive’ circumstances that allowed complainants to overcome basic obstacles to successfully initiate a litigation. Legal complaints referring to ethnoracial law are usually filed by community political organizations or by urban-based middle-class Afrodescendant individuals with a higher education background, who have the necessary financial and social capital to navigate the justice system.

Our deconstruction of specific legal cases undoubtedly shows how fragile the rights that Afrodescendants have reached with the advent of multiculturalism are when the time comes for their application in the everyday practice of life, particularly in the routine operations of Latin American legal systems. We elucidate with some precision the agendas of sociopolitical actors involved more or less directly in the legal cases under scrutiny. Ultimately and hopefully, the knowledge we produce should be of use to re-orient current conversations about race/ethnicity, multiculturalism, ethnoracial law, and the practices of justice systems in Latin America. It might even suggest a path towards necessary reforms, and/or the adoption of new legal instruments and public policies.⁵

We are convinced that the creation of OJALA, and the visibility of the critical knowledge it hopes to bring about Afrodescendants, their rights, and the justice systems of Latin America, cannot be but beneficial for the promotion and defense of Afrodescendants’ rights to live decent and joyful lives.

Latin American racial innocence in the time of monocultural mestizaje and ‘racial democracy’: the shadow of customary law over contemporary ethnoracial legal instruments

In Racial Subordination in Latin America: The Role of the State, Customary Law, and the New Civil Rights Response (2013), Tanya Katerí Hernández (see also this volume) insists on the fact that customary law has not been taken into consideration seriously enough by Latin Americanist legal scholars, legislators, and politicians in general. Indeed, unlike what took place with the Jim Crow laws at the end of the nineteenth century in the United States, and with the apartheid laws of the 1950s in South Africa (which had a number of legal antecedents dating back to the late 1800s) – laws that organized and enforced racial hierarchy and segregation – racial regulation, the reproduction of a racial/spatial order, and the clear drawing of racial lines in Latin American countries were generally not established by a set of written laws per se. Instead, they were put in place, performed, maintained, and protected by customary law and practice, with open support and connivance from the state’s organs and individual bureaucrats, coercive forces, and the justice systems. Customary law refers to unwritten law, in short, that reflects long-established practices, usages, and traditions of a local or national ‘community,’ and that general law might consider as a lawful practice:

[I]n the Roman law legal traditions of Latin America, customary law is a source of law for the origins of its civil law systems, and thus […] should not be overlooked as a mechanism of racial control. Specifically, the Roman law concept of ius non scriptum (rights from the unwritten) describes the laws that arose from unwritten customary practice and had become binding over time, in contrast to jus scriptum (written laws), that is written laws that were intentionally legislated. (Hernández 2013, 11–12)

In this issue, we follow Hernández (2013, 13–14) further when she explains that the concept of ‘customary law and practices’ she works with is not aligned with what anthropologists have sometimes called ‘traditional law’ when referring to the parallel indigenous legal systems in Latin America that happened to clash with the settler colonial and postcolonial state’s legal regimes, but that the contemporary multicultural state eventually accommodates, within certain limits (Andrade 2017; Sieder and Barrera 2017; Stephen 2008; Thomas 2016; Velasco 2017). Indeed, the multicultural state recognizes (in Colombia, Ecuador, and Bolivia at least) – in constitutions and special laws – indigenous collective rights and legal systems, and funds bilingual education (Spanish and an indigenous language). In contrast, the concept of ‘customary law’ used here points to the set of values, beliefs, and practices that colonial and postcolonial states systematically ground their decisions and interventions on to implement, reproduce, and administer a particular socioeconomic and racial order for the long-standing benefit of identified white and white-mestizo elites in multi-racial and multi-ethnic societies. Customary law does not need to be written to be binding and, in the Latin American region, it is the ‘deployment of state resources (with policing of racial segregation and dedication of financial incentives for European immigration) [that] is the key factor for transforming social convention into customary law’ (Hernández 2013, 14). Gramsci-inspired (see Martin 2002) anthropologists and historians of the African diaspora in Latin America have shown that hegemonic processes are at work when subaltern peoples, in this case Afrodescendants, publicly perform an acceptance of ‘race regulation customary law,’ while at the same time also performing a hidden transcript that talks in the open about the powerful ‘behind his back’ (Rahier 2013, 2014; Scott 1990). Additionally, any acute observer of the region will acknowledge that while, on one hand, race regulation customary law has changed in Latin America with the advent of the multicultural turn (Afrodescendants are now found in societal spaces where none were to be found in the 1970s; they now have legal instruments to utilize in their politico-legal strategies, etc.), on the other hand, the virulence of anti-black racism continues unabated as it engages in new paths to marginalize Afrodescendants.

Latin American race regulation customary law has naturalized a racial hierarchy of white supremacy in European settler colonies that continues to impact all sectors of contemporary postcolonial societies. That hierarchization is in many ways grounded on the former colonies’ multiple legal regimes – somewhat different than contemporary multicultural, legal pluralism⁶ – whereas indigenous peoples, African slaves, and European settlers were each subjected to different sets of laws (see Fisher and O’Hara 2009; Hooker 2005; Lynch 1992; Wade 1997), and where European laws – reserved for European settlers and their descendants – were considered as existing in a superior state of being than any other set of laws. This colonial and hierarchical legal order was further compounded by the fact that Europeans and their descendants oversaw, regulated, and managed the practice of all other legal regimes. White supremacy is a fundamental characteristic of Latin American societies.

[It] is […] at the center of black misrecognition. Through distortion, it renders blacks incapable of reason and rationality as enlightened subjects, thus denying them claims to civilization and modernity. Misrecognition is therefore at the critical center in a process of subjection whereby, following Althusser’s definition, blacks (or any subject) become submitted to ‘the ideological apparatus of the state.’ White supremacy naturalizes black inferiority, inhumanity, and abjection. Such misrecognition is instantiated by, through, and in symbolic action. (Hintzen and Rahier 2010, xi)

Contemporary Afro-Latin Americanist ethnographies have shown and documented how structural racism has continued to be pervasive and ordinary across the various countries of the region (Dixon 2016; Goett 2017; Oslender 2016; Paschel 2016; Perry 2013; Rahier 2013, 2014; Smith 2016). A serious scholarly discussion of Afrodescendants’ cultural politics cannot progress without incorporating an attendant discussion of racial/spatial orderings of people and things, of the actual techniques of domination used to impose those orderings (customary law), and of the corresponding politics of resistance deployed by Afrodescendants and others to counter racist narratives. In my own ethnographic work (Rahier 2013, 2014), I have documented (without calling it that way) many examples of the existence and workings of ‘race regulation customary law,’ – ‘the ways in which the social norm of racial exclusion effectively [operates] as a legal regime in which state resources and coercion [are] utilized to enforce the marginalization of persons of African descent’ (Hernández 2013, 15). ‘Race regulation customary law’ can be seen at work in the reproduction of the many stereotypes of black men and women in Latin American societies, which until today continue to construct black men as physically strong, stupid and uneducated, violent and dangerous social predators, while black women are hypersexualized and seen as loud, uneducated, but also domesticated beings. Anti-black racism in Latin America continues to gravely impact Afrodescendants’ lives.

As shown in the articles that follow, the omnipresence of anti-black racism in the region has not decreased with the multicultural turn. This is so, despite the fact that many white and white-mestizo Latin Americans continue repeating with ease, when they are either at home or traveling abroad, their widespread belief that race relations in the region have been much less brutal and much more convivial than race relations have been in the United States (see Hernández 2016). Such a prevalent faith is testament to the success of twentieth century Latin American elites that developed and spread ideological narratives of national identity that celebrate mestizaje (race mixing between indigenous and Europeans in the Andean region and in many Spanish-speaking Latin American countries) (Hale 1996, 1999; Miller 2004; Rahier 2003; Stutzman 1981) or mestiçagem (a term referring to any kind of race mixing in Brazil, even though there it often means race mixing between Europeans and Afrodescendants)⁷ as the prototypical national identity. Each national context in the region has had its particular way of saying something like this: ‘Here, we are not racist because we all have a little bit of all types of blood running in our veins!’ And after such affirmation usually comes the comparison with the United States: ‘We are not like in the United States, where white racial dominance during the period of slavery, as well as in contemporary race relations are much harsher than anywhere else in the Latin American region!’ This statement, which identifies ‘true racism’ as existing in the United States alone and not in Latin America, points to what Hernández has called Latin America’s rhetoric of ‘racial innocence’ (Hernández 2013, 9; 2016): a denial of the existence of racism despite the historically documented virulence of undeniable racial violence.

The notion of ‘race regulation customary law’ should be seen as an appropriate synonym of ‘structural racism’: a set of systemic public (state and other governance level) policies, state (and other governance level) organs’ bureaucratic practices, ‘mainstream’ cultural representations, and a flurry of norms that work in concert to strengthen and perpetuate inequality among ‘racial groups.’ Unfortunately, notwithstanding few affirmative action policies based on some kind of reparation for those coming from a lineage associated with a long history of group discrimination, the Latin American ethnoracial legal instruments that criminalize racial discrimination and that are in focus in this volume do not address but individual behaviors identified as racist and discriminatory, without ever engaging directly and significantly with race regulation customary law or structural racism. And – as the legal cases under scrutiny in this volume show – when such instruments do address race regulation customary law, often bureaucratic and societal practices work to meaningfully neutralize anti-racist legal and administrative decisions. This continued virulence of race regulation customary law is certainly one of the most limiting factors working against current Latin American ethnoracial law and, more specifically, against racial equality/anti-racial discrimination law.

The multicultural turn and the new Latin American constitutionalism

To explain the spread of the ‘multicultural turn’ in the Latin American region since the late 1980s, scholars refer to the combination of local and national indigenous and Afrodescendant political activism with international influences and interventions from Global North countries (through bilateral relationships, Non-Governmental Organizations [NGOs] based in the Global North, etc.), and multilateral organizations (the International Monetary Fund, the World Bank, various United Nations organs, regional financial and justice institutions, etc.) (see Fontaine 2012). That ‘turn’ has taken different shapes in different national contexts, at dissimilar paces, and rarely at exact identical times. With it, indigenous individuals and organizations have progressively become unavoidable and in some cases relatively successful political players on national and international scenes. The same has also been the case for some Afrodescendant individuals and organizations.

With the multicultural turn, official narratives of the nation changed notably in a movement from ideological ‘monocultural mestizaje’ (‘racial democracy’ in Brazil) and the ‘invisibilizing’ of ethnoracial differences in national populations to multiculturalism and state constitutional ‘embracing’ of ethnoracial differences within the ‘national population’ in a logic of state corporatism/co-optation and ethno-normativity that always racializes indigenous people differently than Afrodescendants (notwithstanding their different self-identifications) (see Rahier 2012). With the ‘turn,’ came not only the recognition of ethnoracial collective rights for indigenous people – and in some specific cases for Afrodescendants too – and anti-discrimination law, but also novel ways for the powerful to reproduce the ethnoracial status-quo (race regulation customary law) and its anti-black racism, under the cover of manipulating a multiculturalist (ideological) national narrative. When we use the expressions ‘multiculturalism’ or ‘multiculturalist’ we are most of the times – if not always – referring to the contemporary modus operandi of the state and its organs.

Latin Americanist legal scholars write about what they call the ‘New Latin American Constitutionalism’ as the most visible expression of the multicultural turn in the region. For them, present-day Latin American constitutionalism is ‘new’ because it is utopian,⁸ transformationalist, and rigid. It is utopian and transformationalist, as opposed to ‘conservative,’ because it does not aim to preserve a current state of affairs considered good and desirable, as do typical democratic liberal constitutions (Gaviria Díaz 2015, 22). Instead, the new Latin American constitutionalism seeks to contribute to the establishment of a state of affairs, which it describes, that has not come to existence yet but that is considered to be ideal, necessary, and beneficial. ‘What is not and has not been in existence yet, and that we consider urgent to reach: a truly democratic society’ (Gaviria Díaz 2015, 23). Mark Goodale (2017) identifies this utopian nature of Latin American multiculturalisms and ‘new constitutionalism’ as an expression of a larger, global process that began taking shape at the end of the Cold War (the late 1980s). Indeed, in late 19th and early 20th centuries, many Marxist political movements wanted to revolutionize economic relationships and put an end to the power of property-owning classes (the Russian, Cuban, and Chinese revolutions). In some cases, anticolonial movements adopted violence to reach independence. Back then, law was not seen as providing an avenue for social progress. Instead, it appeared as one aspect of the prevailing power structure useful for the dominant to remain on top, and that progressive forces had to fight against. The end of the Cold War corresponds to the beginning of a new period and its novel perception that law – if used correctly – can provide a means to produce a just society. Disenchantment with the practice of Communism and of revolutions’ violence at the time combined to ignite a new era of enthusiasm for law as an ideal tool to reach justice. The development of international law responded to global capitalism’s needs for a global legal order. The strict enforcement of just laws was seen as a good way to fight against corruption and for accountability.

The expansion of human rights, international criminal courts, the global regulation of trade, and UN peacekeeping are all indications of a turn to law as the path to promoting social order. Producing a global legal order clearly benefits states as well as international corporations. It pulls domestic conflicts under the authority of state governance, thus enhancing state control over populations. It also empowers what is called the ‘international community’ as a central source of governance and legal order. But this term conceals the extent to which this community is made up of powerful nation-states, which exercise disproportionate power in international institutions and international law. (Engle Merry 2017, x)

New constitutions and their recognitions of ethnic and racial diversity in national populations were a novelty when considering the long list of previous Latin American constitutions from the monocultural mestizaje period that never mentioned any ethno-racial diversity in national populations, often assuming a white-mestizo ‘we’ that invisibilized ethno-racial differences. The new Latin American constitutions project a symbolic and ideological dimension in that they are inscribed in a desired democratic rupture with the immediate societal and constitutional past (Nolte and Schilling-Vacaflor 2012) mired in republican universalism. They are imbued with the hope that their application in all identified aspects of life will contribute to bringing about justice and happiness. They are innovative and their scope is vast, as is – when compared to previous constitutions – the number of their articles. Their most striking characteristic is certainly the extended catalogues of rights they recognize for identified vulnerable groups (women, children and youth, the physically impaired, the elderly, etc.) and historically marginalized minorities (indigenous groups and communities of Afrodescendants, mostly), including the protection against discrimination that they provide them with. A number of special laws making operational constitutional articles and principles have also been passed along with, or right after the adoption of, constitutional reforms or new constitutions. As already stated, the multicultural turn, or to be more precise the new Latin American constitutionalism, has brought about specific legal instruments: 1) those that have for objective to recognize and protect identity-based collective rights (for indigenous people and also sometimes for Afrodescendants and others); and 2) those instruments that typify hate crimes and provide sentences and remedies in instances of racial and other discriminations.

In Becoming Black Political Subjects: Movements and Ethno-Racial Rights in Colombia and Brazil (2016), Tannia Paschel proposes a categorical dichotomization of what she calls two different ‘political field alignments,’ which she conceptualizes as two separate and mutually exclusive politico-legal discourses of ‘ethno-racial collective rights’ (or ‘multicultural rights’) on one side, and ‘racial equality law’ on the other, which correspond to the two categories of legal instruments brought by Latin America’s new constitutionalism discussed above. Each political field alignment results from the combination of domestic politics with the politics of the ‘global ethno-racial field.’ Wanting to take distance from the many Latin Americanist scholars who identify both ‘political field alignments’ with the multicultural turn (because they see their intents as falling within the scope of Latin America’s new constitutionalism), Paschel sees these two political field alignments as occurring at two different time periods: the late 1980s and the 1990s for the ‘multicultural alignment,’ and the 2000s for the ‘racial equality law alignment.’ When considering the Latin American region as a whole, and moving beyond the particularities of this or that specific national context (Brazil or Colombia, for example), we can undeniably see in virtually all relevant constitutional reforms or in the adoption of new constitutions – including the Brazilian and Colombian cases – articles prohibiting racial and other discriminations prominently placed alongside articles recognizing ethnoracially based collective rights. Legal scholars consider the recognition of ‘ethnoracial collective rights’ and the adoption of ‘legal protection against racial and other discriminations’ as two aspects of the new Latin American constitutionalism, as two different threads of a single multicultural project to reorganize society. When consulting recent constitutional reforms and adoptions of new constitutions, one can appreciate that both sets of preoccupations and instruments have characterized Latin American multiculturalisms and new constitutionalism since their very beginning.

There is obviously intellectual value to Paschel’s distinction between what she also calls the ‘multicultural alignment’ – mostly associated with ethnoracially based collective rights for Afrodescendant communities in rural areas (the quilombos in Brazil and the ‘black communities’ of the Pacific coast in Colombia) – and the ‘racial equality law alignment’ – associated with urban individuals and communities that often constitute growing black middle classes. The dichotomization she argues for has the benefit to lay emphasis on the profoundly different logics behind each set of political demands and accommodations: the right to be different (multicultural collective rights) versus the right to be treated as anyone else or the right to be the same with equity (anti-discrimination law). However, her insistence in understanding these two ‘political field alignments’ as definitely antithetical and as belonging to different ‘time periods,’ as if both of their logics could not be found at work at the same time in one particular national context, is not an accurate depiction of what has actually happened in the region. Her want-to-be-valid-across-the-region periodization is certainly Pashel’s most problematic argument. The so-called Latin American multicultural turn has taken place at different times and paces in the different countries of the region. While Brazil and Colombia – the two countries she focuses on – are among the first to engage in the turn (see the 1988 Brazilian, and the 1991 Colombian constitutions), other countries have not engaged in it before the 2000s altogether, while others – for a number of different reasons – remained almost untouched by it (Puerto Rico, the Dominican Republic, Cuba). To only take a few examples: it is only on 28 June 2019 that the constitution of the Federal United States of Mexico was reformed to include – for the very first time – the recognition of the existence of Afro-Mexican peoples and communities (see Camara de Diputados. 2019); in Ecuador, although the first constitution to adopt a multiculturalist orientation was passed in 1998 with separate articles acknowledging the possibility of collective rights for Afrodescendants and assuming an anti-discrimination stance, the 2008 constitution adopted during Rafael Correa’s administration (2007–2017) re-emphasized the same on both fronts with vigor; Bolivia approved a new constitution in 2009, which for the first time named Afro-Bolivians as part of the nation, granting them – ‘in all that applies’ (Article 32) – the same collective rights and protections as indigenous peoples, and also protecting them against discrimination; The International Labour Organization (ILO) Convention 169, a legal instrument of importance for Afrodescendants to defend their collective rights to territory, particularly in Central America, has only been ratified after the year 2000 by Argentina, Brazil, Chile, Nicaragua, and Venezuela. Paschel’s periodization too enthusiastically conflates the rather rigid timeframe she put together to make sense of the Brazilian situation to the entire Latin American region. If it is true that the 2001 U.N. World Conference Against Racism that took place in Durban, South Africa had a considerable impact on black social movements in Latin America, it is not right to say that prior to ‘Durban’ – as this conference is commonly known in the region – there was no adoption of anti-discrimination or racial equality legal instruments, or that prior to 2001 no one in the region was actually active politically against discrimination.

In her book, in a section on ‘Multicultural Constitutionalism’ (2016, 7), Paschel directly contradicts her affirmation that racial equality laws and policies only emerge in the 2000s. Indeed, she confirms that with the advent of ‘multiculturalism’ many Latin American states ‘[…] also passed affirmative action policies, in the areas of education and even in political life’ (2016, 8). Later on in the book, when she discusses the work of the Brazilian National Constituent Assembly on ethnoracial rights that preceded the adoption of the first multicultural constitution in the region in 1988, Paschel acknowledges how heated the discussions about affirmative action policies were (2016, 92–95) and that many propositions came from different black organizations. Of these, ‘only two […] were ultimately included in Brazil’s 1988 constitution: racism was criminalized, and quilombos were guaranteed territorial rights’ (2016, 90), which embodies the intertwined duality ‘multicultural constitutionalism’-’racial equality law’ found in Latin American multiculturalisms since the very start of the multicultural turn. They have indeed been entangled, even if one might have eventually dominated the political conversation/debate at different time periods in given national contexts, without ever erasing the other.

The categorical separation between ‘multiculturalism’ and ‘racial equality law’ Paschel argues for is also contradicted by the facts of Brazilian legal history. In Brazil, a number of anti-discrimination laws were indeed passed quickly after the adoption of the 1988 constitution (see Hernández 2013, 121–123) and before the 2000s. In 1989, the Brazilian Congress passed Law 7716 (called Lei Caó), which criminalized race and color discrimination in public facilities and in employment in both the public and the private sectors, with punishments ranging from 1 to 5 years (Lei Número 7.716 de 5 de Janeiro de 1989). Then, in 1990, Law 8081 added to Law 7716 the new crime of ‘practicing, inducing or inciting, by means of public communication or publications of any nature, discrimination or prejudice on the basis of race, religion, ethnicity, or national origin’ (Lei Numero 8.081, de 21 de Setembro de 1990). Committing this crime came with a punishment of 2 to 5 years of imprisonment. In 1997, Law Paim further transformed Law 7716. One of the most notable changes it introduced is certainly the notion of ‘racial insult’ (injúria racial) (Lei Número 9.459 de 13 de mayo de 1997).

We are aware that when considering the region as a whole, both types of ethnoracial legal instruments (those that recognize multicultural collective rights and those called ‘racial equality law’ or ‘anti-discrimination law’) are undoubtedly linked to each other and to the multicultural turn. We nonetheless deal with them separately to acknowledge that in Brazil, for example, which we consider as one national context of the Latin American region (as opposed to yielding to ideas of Brazilian exceptionalism), both sets of instruments have been politicized by some in the Brazilian black social movements as existing somewhat in opposition to each other (see the article by Rebecca Igreja and Gianmarco Ferreira in this issue). We do so for pragmatic reasons, acknowledging the value in considering the two ‘political field alignments’ as participating in somewhat separated logics, despite our disagreement with Paschel who sees them as two opposite and mutually exclusive political discourses that would have dominated black social movements and the fight for human rights for Afrodescendants in the region at different time periods, one succeeding the other.

Paschel’s intent to categorically separate these two faces of the ‘multicultural coin’ brings her to propose a highly problematic formulation. Indeed, when considering the Colombian case of multiculturalism, the Pacific Lowlands area – demographically speaking South America’s second ‘black region’ after Northeastern Brazil – constitute the territory of many ‘black communities’ or comunidades negras as conceptualized in the 1991 multiculturalist constitution, and particularly in its Artículo Transitorio (AT) 55. After the adoption of the constitution, a process announced by AT 55 led to the subsequent adoption of the famous Law 70 on 27 August 1993. AT 55 and Law 70 brought about what Eduardo Restrepo (2004) has called the ‘ethnicization of blackness’ in Colombia, because they recognize rural black communities of the Pacific Coast as the legal territorial collective owners in a manner usually associated in Latin America with indigenous people (lo étnico is usually lo indígena, while lo racial is lo negro) (see Hooker 2005). At the time, black communities located elsewhere in the country, outside the Pacific Lowlands, did not benefit from Law 70’s recognition of Afrodescendants’ collective rights–as is the case today outside of the Pacific Lowlands (see the article by Sofía Lara in this issue). Determined to come up with her own formulations, Pashel is inspired by Restrepo’s (2004) ‘ethnicization of blackness’ (which corresponds to ‘the multicultural alignment’ of the Colombian Pacific black communities) and coins the ‘deracialization […] of blackness’ (2016, 102; my emphasis) instead. Where Restrepo saw ‘ethnicized black communities,’ she sees ‘deracialized black communities.’ In doing so, she suggests that the only valid struggle for Afrodescendants as ‘racialized black people’ was the one against discrimination, and that their struggle for collective rights over territory made them less ‘racially black’ somehow. She wants that formulation to be valid for the characterization of Afrodescendants struggling for collective rights across the region. If we are to follow Ulrich Oslender (2016), while the ‘ethnicization of blackness’ makes sense, the ‘deracialization of blackness’ does not. Indeed, Oslender emphasized that Law 70 had the effect of considerably incentivizing black political mobilization on the Pacific coast:

By 1994 over 350 organizations of black communities were registered with the Office for Black Community Affairs. As one of the most strongly articulated directions at coordinating these efforts on the regional and national level, the Proceso de Comunidades Negras (PCN) (Process of Black Communities) emerged as a network of more than 120 local organizations and a national organizational dynamic with its base in the Pacific port city of Buenaventura. (2016, 3)

The PCN coordinated an ‘ethnic-territorial’ movement based on five principles: 1) the reaffirmation of identity and the right to be black; 2) the right to territory and a space for being; 3) autonomy as the right to the exercise of identity; 4) the construction of an autonomous perspective for the future; and 5) a declaration of solidarity with Afrodescendants everywhere. If this is an example of ‘deracialization,’ then what racialization must be explained.

The processual nature of the state

With this comparative special issue, we want to interrogate the practice of ethnoracial law as it began emerging in the region with the multicultural turn thirty years ago. We want to provide an assessment of contemporary ethnoracial legal instruments by attempting to answer the following questions: How and how often, in the diverse Latin American national contexts we refer to in this issue, have these constitutions and special laws been used to correct a wrong, to punish anti-black racists, or to protect the collective rights of Afrodescendants? How useful have these instruments been to defend the plight of Afrodescendants? What have been the major obstacles, and erected by which sociopolitical actors, to limit the enjoyment of the full benefit of these instruments’ application as designed by the relevant constituent assemblies? What are the eventual defects of these instruments when considering their usages in the courts of law?

Many have already proposed an answer to these questions by simply dismissing any importance to the multicultural turn and its adoptions of new legal instruments to secure collective rights and combat discrimination. This is so, that argument continues, because the settler state is always unavoidably siding with white and white-mestizo elites, ultimately against indigenous peoples’ and Afrodescendants’ interests, even when it brandishes the ideology of multiculturalism to supposedly improve ethnic and racial ‘minorities’’ life conditions. Such dismissals are rarely based on actual observations of specific court cases in multicultural states – court cases that would have been unthinkable during monocultural mestizaje. The answers to these questions that the contributors to this volume provide are all based on the examination of specific legal cases coming from across the region and its diverse justice systems and national contexts of multiculturalism. By doing so, we are ultimately interested in examining how state institutions actually function, or not. We aim to present ethnographically based analyses of legal cases that are nothing but ethnographies of the ways that the bureaucratically complex, multicultural, Latin American states actually interact with their citizens, through the practice of their (sometimes conflicting) state organs and justice systems.

We inscribe this project within the anthropology of the state as discussed by Akhil Gupta and Aradhana Sharma, who explained that:

[A]n anthropological approach to the state differs from that of other disciplines by according centrality to the meanings of everyday practices of bureaucracies and their relation to representations of the state. (2006, 277)

One of the fundamental premises of the intellectual project that the preparation of this collection constitutes is that to seriously and meticulously study the multicultural state in Latin America, we may not be content with assuming the state as being nothing more than an abstract entity that would simply be in existence over citizens’ heads and mysteriously and more or less directly influence important aspects of their lives. Nor are we satisfied with easy dismissals of the state as if we had already understood everything there is to know about it, as if it were nothing more than an abstraction used to refer to an apparatus of power imbued with Eurocentric coloniality at the service of national elites, and that imposes upon citizens a neoliberal ‘universal’ order of things that does not do but violence to indigenous peoples’ and Afrodescendants’ cultural perspectives, interests, and rights. Although we do not necessarily disagree with such an abstract and highly generalized assessment of the state, we want to take the time to carefully examine citizens-state interactions as they relate to the use of ethnoracial law in Latin American justice systems, and to the interventions of differently positioned state bureaucrats (state officers, judges of various instances, prosecutors, public defenders, law enforcement officers, the military, etc.) and other socio-political actors in specific legal cases, both in and outside courtrooms.

It is our contention that, to study the contemporary multicultural state in Latin America, it is essential to even move beyond the late settler colonial studies’ scholar Patrick Wolfe’s remarks, according to which settler invasion is not an event but a structure that aims to reproduce itself (Wolfe 2006): the settler state will erase the presence of indigenous people (and by extension of Afrodescendants) either by geographic displacement, physical elimination, or ‘amalgamation’ (read ‘racial mestizaje’ and ‘cultural mixings’). That situation, many settler colonial studies scholars have asserted, must be remedied by rejecting any official state recognition and state corporatism/cooptation of indigenous people and Afrodescendants so that these can instead engage in ‘self-recognition,’ in an alternative move that wants the revaluation, rebuilding, and redeployment of indigenous (and, by extension, African traditional)⁹ practices (Brandzel 2016; Coulthard 2014; Veracini 2010, 2011; Wolfe 2006). Such a position is one that wants it both ways. On one hand, it considers that no matter what you do, unless you destroy it first, the settler state will always absorb, neutralize, and phagocyte any political resistance from social movements against the imposition of its vertical power on everyone and everything; the settler colonial state will coopt them, and incorporate them within the purview of its domain. On the other hand, settler colonial studies recommend political action in situations in which the settler state has not been eliminated, and calls for indigenous people (and in some ways, Afrodescendants too) to ignore the settler state and its recognitions, and to instead look for self-recognition by leaving creolized cultural formations and re-embracing ‘authentic’ traditional practices and perspectives. Obviously, questions about the sustainability of such a political positioning remain. Is it realistic to ask indigenous people and Afrodescendants to ignore the state as they are engaged in a daily and sometimes urgent struggle for the protection of their rights? That is definitely a position that many indigenous and Afrodescendant community leaders think of as a luxury they absolutely do not have. We may doubt of its usefulness to support actual, positive, political action. In any case, to what specific ‘traditional practices’ should contemporary Afrodescendants and ‘indigenous’ people go back to, exactly? And who is to make the decision? Just like the multicultural state does, settler colonial studies’ arguments produce a particular kind of ethnonormativity (Dulitzki 2010; Gallegos 2017). These ethnonormativities (both the multicultural state’s and settler colonial studies’) might appear at times as nothing more than romantic simplifications of always-much-more-complex realities.

We are aware of the importance of the state in multicultural Latin American societies. Rather than dismissing the state, we want to study it, its organs and functionaries, their microphysics: the way they all actually ‘work’ or function in the practice of everyday life, and above all in the processes of its legal system. We want to overcome routine and ordinary theoretical fetishizing of the state that take it as a departure point and fail to demystify its existence. Such fetishizing reifies the state and treats it as a thing or a given separated from society, a naturalized entity that maintains within itself its own power/authority in an organic unity that reveals it as the embodiment of reason (Avineri 1972; Hobbes and Gaskin 1998). The contributors to this volume prefer to see the state ‘as a mappable constellation of social practices’ (Kortright 2005). Indeed, there is no doubt that it is through the eyes and minds of citizens that the state comes to existence, that is to say – as Gupta and Sharma indicated (2006) – that it is through the representations of the state that citizens carry along, reproduce, and transform in their interactions with state bureaucrats that the state lives on.

To understand the state, how it works, how it reproduces itself and how it changes, micro-analyses of interactions between identified state functionaries and specific individual citizens are necessary, as are an examination of the images of the state they hold. This is where ethnography intervenes. And this is where our project develops. By paying careful ethnographic attention to the mechanics of legal cases as they unfold in specific national contexts, this project wants to look at practices of the state in the context of its legal system and the application of ‘multicultural legal instruments’ and anti-discrimination law for the benefit of Afrodescendants. The state does not exist but through the more or less ritualized practice and performances of its different representatives, through the practice and administration of the law by specialized and trained agents (judges, prosecutors, attorneys, law enforcement officers, etc.) who interact with, in this case, Afrodescendant citizens who are turning toward the state for redress.

The recent work of Tatjana Thelen, Larissa Vetters, and Keebet von Benda-Beckmann, and their theorizing of what they call ‘stategraphy,’ which they see as ‘a relational anthropology of the state’ is particularly useful to express what we have in mind:

[…] (W)e can describe the state as a relational setting that cannot be categorized according to simple hierarchies or a governing center, but that exists within the relations between actors who have unequal access to material, social, regulatory, and symbolic resources and who negotiate over ideas of legitimate power by drawing on state images – at once reaffirming and transforming these representations within concrete practices. Such a conceptualization does not attach any regulative functions or source of authority per se to the state. States are viewed not as being characterized by static ties but as being processual in nature. From that perspective, states can be understood as ever-changing political formations with institutional settings that are structured by social relations in interactions characterized by different state images. (2017, 7)

The articles in this issue

This special issue is made up of this introduction, four research articles, and three shorter in size research notes. The first research article, by Sofía Lara, ‘The use of multicultural legal instruments in a dispute between Afrodescendants and indigenous People: the case of Guamal, Colombia,’ brings the multiculturalist practices of the Colombian state and its organs and branches into view, through the examination of a case that has been opposing the Afrodescendant community council of Guamal to the authorities of the indigenous town hall (cabildo) of Cañamomo and Lomaprieta: both have been using multicultural legal instruments in their plight for recognition and territory against the other. This politico-judicial confrontation brought the state in a position of arbiter of the intercultural dialogue/confrontation its agents facilitated between the two ethnoracial minority groups. The article reveals that in this conflict, the existence of multicultural legal and institutional instruments (and particularly Law 70) were key for Afrodescendants to reach recognition and territorial authority in Guamal, despite indigenous preeminence in the area, and the fact that Law 70 was originally drawn for the black communities of the Pacific coast. The article uncovers both Afrodescendant and indigenous leaders’ mastery of the multiculturalist language of contention.

The second research article, ‘The “multicultural invisibility” of Afro-Venezuelans and their alternative legal politics to fight racial discrimination and acquire ethnoracial recognition: the legal case against Cine Citta,’ by Krisna Ruette-Orihuela and Dayana Rivas Brito, focuses on the Venezuelan Organic Law against Racial Discrimination (LOCDRA) and its implementation by the National Institute against Racial Discrimination (INCODIR) through the analysis of a case against racial discrimination by the Caracas-based ice cream parlor Cine Citta. Although it reveals the poor implementation of the law and the limited preventive and corrective work of INCODIR, the article emphasizes the role played by social media activist actors around the case in triggering anti-discrimination legal mechanisms, in a context in which – unlike with the existence of Law 70 in Colombia – Afrodescendants are not recognized as legitimate recipients of collective rights, within a multiculturalist framework.

The third research article, ‘Anti-discrimination law in two legal cases in Ecuador: Afro-Ecuadorian organizations and individuals versus Bonil/El Universo, and Michael Arce versus Lieutenant Fernando Encalada/Escuela Militar Eloy Alfaro,’ by Jean Muteba Rahier and Jhon Antón Sánchez, examines two different litigations and shows how different socio-political actors can interpret the facts of the same case by relocating them within two completely separate fields of meaning. The article also suggests that ‘race regulation customary law’ is certainly at the origin of many of the obstacles erected to limit the impact of anti-discrimination law.

The fourth research article, ‘The law of racial quotas in Brazil to the test of labor justice: a legal case against Banco do Brasil,’ by Rebecca Lemos Igreja and Gianmarco Ferreira, discusses Brazilian racial quotas-affirmative action policies in light of the examination of one litigation initiated by a white Brazilian applicant for a public job competition who feels he has been victimized by the selection of a black Brazilian who fared less than he did at the competition exam. The article shows how fragile affirmative action policies are when facing the many barriers erected to prevent their full impact.

The first research note, ‘The Garifuna community of Triunfo de la Cruz versus the state of Honduras: possibilities and limits of the Inter-American Court of Human Rights Verdict,’ by Carlos Agudelo, focuses on the ILO Convention No. 169 and on the 8 October 2015 Inter-American Court of Human Rights’ ruling against the state of Honduras for violating the Garífuna community of Triunfo de la Cruz’s property rights over their territories. The note discusses the utility, limits, and possibilities of international legal instrument to defend Afrodescendant peoples’ multicultural rights.

The second research note, ‘The promises and limits of Bolivia’s Anti-Racism Law (Law 045) for Afro-Bolivians: Tundiqui, CONAFRO, and the battle against blackface,’ by Sara Busdiecker, disentangles the legal challenges brought against the blackface representations of Afrodescendants in the popular folk expression known as tundiqui, which Afrodescendants and others find racist. The note emphasizes how difficult it is to transform anti-black and racist cultural performances using anti-discrimination or racial equality legal instruments alone.

The third and final research note, ‘Latin American racial equality law as criminal law,’ by Tanya Katerí Hernández, suggests that there has been a disproportionate reliance upon criminal law to address racial discrimination in the Latin American region. It concludes that it might be worth the consideration of civil law to amplify the usefulness of existing criminal law and better address discrimination and work for the eradication of racism.

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Notes on contributors

Jean Muteba Rahier

Jean Muteba Rahier received his PhD in sociology from the Université de Paris X, at Nanterre, France. He is professor of anthropology and African & African diaspora studies at Florida International University (FIU). He has authored La Décima: Poesía Oral Negra del Ecuador (Quito, Ecuador: Abya-Yala, 1987); Kings for Three Days: The Play of Race and Gender in an Afro-Ecuadorian Festival (The University of Illinois Press, 2013) and Blackness in the Andes: Ethnographic Vignettes of Cultural Politics in the Time of Multiculturalism (Palgrave-Macmillan 2014). He has, as well as edited or co-edited several other books and authored numerous articles. From January 2002 to the summer 2007, he served as Editor-in-Chief of the Journal of Latin American and Caribbean Anthropology. He currently serves as Director of the Observatory of Justice for Afrodescendants in Latin America (OJALA), housed in the Kimberly Green Latin American and Caribbean Center, at FIU (http://ojala.fiu.edu).

Notes

1. For more information about the foundation of OJALA, see http://ojala.fiu.edu.

2. On the ‘pluriverse,’ see Escobar (2018); for a discussion of ‘decoloniality,’ see Mignolo and Walsh (2018).

3. For a number of reasons, three papers that were included in our deliberations have not been included in this special issue. We hope to have them published in LACES in the near future. Their authors and titles: Gabriela Iturralde Nieto, ‘Juicios de Amparo as Legal Resources for Identity Construction and Collective Rights: The Afrojarochos of Santa María de Guadalupe de los Negros de Amapa, Oaxaca, Mexico’; Alicia Saura, ‘Tensions between Anti-Discrimination Legislation and Freedom of Expression in Uruguay: A Legal Case about Anti-Black Racism and Electronic Communication’; and Mariela Noles Cotito, ‘In Search of Effective Legal Protection through the Use of Ethnoracial Norms in Peru: Reflections on the Case Negro Mama.’

4. I further discuss Tianna Paschel’s work in the following pages.

5. See the Observatory of Justice for Afrodescendants in Latin America (OJALA), which the contributors to this volume founded in the spring of 2018 http://ojala.fiu.edu.

6. One could legitimately argue that contemporary multicultural, legal pluralism continues to reproduce an ordering inherited from the colonial period.

7. See my discussion of the transnational polysemy of the multi-lingual terms used to evoke race mixing in Latin America and elsewhere, and of the inherent difficulty to maintain a meaningful conversation going, across borders (Rahier 2014, 65–88).

8. The most recent national constituent assemblies held in various Latin American countries – except the still active 2017 constituent national assembly installed by Nicolás Maduro and his political allies in Venezuela as a ploy for their political survival – have provided spaces for intellectual and relatively utopian social interventionism effervescence, wherein assembly men and women, and indigenous, Afrodescendant, and other movements contributed to the drawing of the charter of what they hoped would be a new society in which ‘true happiness would be possible’ (see Agudelo 2004; Andolina 2003; Rahier 2011; Wade 1995).

9. In Latin America, usually, the African diaspora is conceptualized as existing outside understandings of ‘indigeneity’ (with the exception of the Garífuna of Central America). As a field of inquiry, settler colonial studies exclusively consider indigenous peoples and indigeneity, while remaining completely silent about diasporas.