The Limits of Law for Emancipation (in the South)

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After a long tradition of distance from state legality, over the last couple of decades various marginalised groups in Latin America have been turning to law and the courts in the hope that they will provide the social justice that the regular political system has systematically denied them. Encouraged by the compelling rhetoric of the human rights-based constitutionalism now prevalent in transnational legal academia — and helped logistically by a dense network of international non-governmental organisations — these segments of society have been betting on the sort of judicially triggered social transformation exemplified by the US ‘Warren Court’ and the European Court of Human Rights. This remarkable turn to state law by Latin Americans owes much to the reconciliation of law and justice accomplished by the international human rights movement and a ‘new constitutionalism’ that prescribes an activist role of the courts in the promotion of social justice. Confronted with this new scenario, questions arise concerning the real potential of this new shift to law by marginalised groups in countries of the South. In this article, I address this issue through the study of the treatment by the Chilean courts of incarcerated people’s rights since the return to democracy. The analysis suggests that, even in a country with a highly consolidated democratic rule of law, the turn to the judiciary can be very frustrating. In fact, the passivity of the Chilean courts before flagrant violations of the human rights of the inmates in the country’s gaols seem to confirm the notion that the turn to courts can only be a first step — one that ought to be accompanied by social and political mobilisation.