The dawn of the 21st century in Latin America revealed a liberating rebirth through the political and economic changes that emerged and developed in several of its countries. These changes manifested as a reduction in social inequality and a redistribution of wealth, along with an integrative and cooperative perspective among its peoples, in the face of transnational capital and its international organizations, marked by US hegemony. Although these processes reached a turning point through electoral means, the role of diverse social struggles in gaining access to state power and establishing radical democratic policies remained crucial.

It is important to highlight law as one of the fundamental instruments that accompanied the radicalization of these processes, leading to constituent processes that modified previous constitutional models in some of these countries, such as Venezuela, Bolivia, and Ecuador. All of them included innovative institutional designs, disrupting modern notions of the nation-state, such as the separation of powers, and establishing mechanisms for participation, deliberation, and popular control. They also advanced in the regulation of the economy, establishing notions of good living or well-being; they recognized new subjects of rights and protected assets such as Mother Earth; they established margins of autonomy for different collective subjects, including indigenous communities; as well as mechanisms of guarantees beyond the jurisdictional sphere for the defense of rights.

At first glance, these constituent processes and their norms are situated within a transformative constitutionalism (Sousa Santos 2010:71-80; 2012:123), rooted in a radical democratic tradition (Pisarello 2012:191-201, Navas 2014:95-115). These socio-legal processes were not merely the result of agreements between political groups, but rather the culmination of struggles by popular political and social organizations seeking to change ways of life governed by neoliberal capital. During this same period, other countries, such as Brazil and Argentina, implemented legal and public policy reforms that generated certain breaks with neoliberal models and social advances for vulnerable sectors and groups.

However, as progressive governments advanced with more or less radical policies, the global and regional economic adjustment policies of transnational capital continued their course. Those most effectively integrated within the continent have been primarily American and Canadian, without overlooking the influence of European capital, and Chinese capital in the last decade, although with varying degrees of impact. All of these entities operate at different scales, at state and regional levels, and employ both legal and illegal forms of violence, contesting every space and way of life that represents profits in their accumulative dynamic (Echeverría 2012).

Neoliberal policies have returned with greater force to our countries, protected by elected governments, as in the cases of Argentina, Brazil, Ecuador, and Colombia, or by situations of severe economic, social, and environmental crisis, as in the case of Puerto Rico. Furthermore, for almost twenty years, big business and the US government have maintained an agenda of constant aggression and destabilization against countries attempting to take any progressive path, whether through coups or economic and trade blockades, as in the cases of Honduras (Manuel Zelaya in 2009) and Venezuela (Hugo Chávez in 2002, Nicolás Maduro in 2019), to name the most relevant examples. We cannot fail to mention the consistently adverse relationship between Cuba and the US, which, despite the reestablishment of diplomatic relations in 2014, has never fully eliminated the economic and trade blockade established in 1962.

In the case of Mexico, a progressive government took office in 2018. This belated progressivism stems from the electoral frauds of 2006 and 2012, and its anti-neoliberal stance is only just beginning to be articulated, provoking nascent social changes. Over the last two decades, Mexico has suffered the full force of neoliberal policies, generating a profound political and social crisis linked to the rule of law. This country demonstrates how capitalism is structured and consolidated through links and transfers between legal and criminal economies (such as drug trafficking) that operate from the transnational to the local level, producing different types of violence that erode local, regional, and national spaces, as well as the interrelationships between them.

Our America is witnessing an advance of the conservative agenda in general, expressed in the strengthening of neoliberalism, but also in an increase in social conflicts and political struggles. The dispossession and appropriation of natural resources by capital in collusion with states remains constant or has increased; the uses of law by capital for its accumulative objectives continue to have diverse manifestations; protests and social movements are criminalized; and progressive political trends appear disoriented in terms of political and legal protection. From the socio-legal field, neoliberal practices have generated a wave of destitution (Pisarello 2014:11), of deconstitutionalization, emptying legal regulations of their substantial content, especially regarding social rights (Aparicio 2014), and of the perpetuation and deviation of power through law (Gandarilla 2018), where its most recent manifestation is the politicization of justice, known as LawFare where judicial institutions, which should guarantee democratic constitutional processes, have provided legal uses and interpretations contrary to the demands of the people, social struggles, and even previous progressive policies. On the other hand, the law is used by peoples and social groups in the face of the onslaught of state capital, and some states that resist external and internal aggression, as is the case in Venezuela, use the law as a means of containment and a way out in their own struggle. In essence, the law remains a field of dispute in the socio-political struggle (Hernández; Burgos 2018).

In the research conducted by this Working Group (2013-2016 and 2016-2019), considerable effort was dedicated to understanding constituent movements and their sociopolitical processes. With the new political landscape, the focus now is on discussing, analyzing, and investigating:

What is the political, social, and economic significance of the constitutional legal field in guaranteeing a radical democratic context?

Are socio-legal processes in their entirety useful for social actors in their struggles?

What is the relationship between local socio-legal processes and those at the international, regional, and universal levels?

What role do legal and illegal forms of violence play in the entire neoliberal context?

What role does law play in the neoliberal context and how is it expressed in different types of social actors: as containment, facilitation, manipulation, or a mechanism of liberation?

The proposed topic has antecedents in the CLACSO GTs “Latin American Legal Critique. Social Movements and Emancipatory Processes” (2013-2016) and Critical Legal Thought (2016-2019), in which the relationship between social movements and constituent assemblies in Our America (Venezuela, Bolivia and Ecuador) was studied from the critical theories of law, as well as the dispute and the degree of transformative capacity of law considered from its plurality and interscalarity, among other issues.

The current research will take an interdisciplinary approach to how the uses of law, its strategies, functions, aims, and relationships with politics and economics have changed in contemporary Latin America, where neoliberalism has reestablished its principles and course. While much of the radical and innovative democratic content of the constituent processes we previously studied offered a scenario of progressive political, social, and ecological promises, these legal systems now exhibit the capacity for change and resistance to previous advances.  

The neoliberal onslaught is advancing within states in different sociopolitical spaces and affecting individuals in various ways, with the legal sphere playing a fundamental role. Capital accumulation requires law and its enforcement, and also uses illegalities, power, and private violence at its disposal to achieve its ends (Comaroff and Comaroff, 2009). This gives rise to diverse socio-legal processes, both dominant and resistant, where ways of life and perspectives, territories, natural resources, and the rights of individuals and groups are contested at different scales (sometimes simultaneously): from the local level, within the spaces of state justice, to the inter- and universal spheres of human rights.

The project proposed here revolves around the political, social, economic, and ecological articulations that permeate social groups and movements in their conflicts when the law constitutes part of the field of dispute. Today, the socio-legal sphere is permeated by de-democratization (Brown 2015), by destituent processes (Pisarello 2011; 2016), by deconstitutionalization (Aparicio 2014), and by the perpetuation and diversion of power (Gandarilla 2018), advancing an oligarchic constitutionalism as a true global colonialism, like the new disguises of Leviathan (Monedero 2017).

Today, democracy and state law are being challenged in their political and social meaning by neoliberal policies, but also by the people. Law is expressed dialectically in its use by peoples and social groups in their processes of resistance, containing state capital through an alternative use of law and/or as their own law, with the intention of social change or preserving their living conditions. In this sense, the relationship between law and political resistance and the commitment to social transformation must be understood so that it can be affirmed as a counter-hegemonic instrument (Santos, 2010). Hence the questions: Does law, in its state sphere and as a social process (legal pluralism), still have transformative capacity? Have the peoples who were very active in the constituent processes of the continent until a few years ago lost their plebeian power as a form of resistance, but also their will for social change by alternatively using the socio-legal field? (Linera, 2010).

To answer these questions, it is necessary to reconstruct a critical constitutionalism from diverse critical legal perspectives (de Cabo Martín, 2014). This also requires critical sociological and anthropological legal studies that offer tools for investigating social reality and the dialectical movement of law within social struggles.

One of the issues to be addressed is that of the State. Has the Leviathan been defeated (Moncayo 2018) by the effects of neoliberal globalization on its modern sovereignty? Or is the State still useful for anticipating, calculating, and protecting capital in a context of dispossession, legal and illegal violence, and criminal economies? (Hernández & Burgos, 2018). Has the State been reduced to merely a security agent against social insurgency? (Laval & Dardot, 2013), acting as a kind of guarantor of private business and income concentration: a strong State for the private sector (Laval & Dardot, 2013), and a minimal State for the public sector. These issues demand a critical investigation of the role of state policies in the current scenario and their role in addressing urgent societal issues, such as: socio-environmental conflicts, labor crises, demands for plurality and its rights in the sense of a “new culture” (Wolkmer 2017), gender issues and feminist struggles, anti-globalization and anti-capitalist movements, struggles for the affirmation of human rights and various forms of democracy; that is, countless issues that require problematizing the State's position.

Another relevant topic for social, political, and legal-critical research is the question of Latin American society itself, since governments have not come to power without the electoral support of a significant portion of the citizenry. This is a point that must be analyzed from the normative perspective of neoliberalism (Laval, Dardot, 2013), which generates an ideology of subjectivation based on business premises. 

Also within the social sphere, the socio-legal processes carried out by social movements and groups that continue to fight for their natural resources, their ways of life, and for the creation, occupation, and generation of social and political life through the articulation of the public sphere will be studied. These processes aim to reclaim the political dimension of democracy (Wood, 2011) and the concept of the commons (Houtart and Daiber, 2011), thereby rescuing their ways of life. There is no dignified life or democracy in a material or substantive sense under capitalism. As Ellen Wood states, capitalist democracy is formal and, in the long run, anti-democratic (Laval; Dardot, 2013).

Faced with the advance of oligarchic constitutionalism (Pisarello 2011) of corporations, with constitutional reforms against social rights, taking into account neoliberal ideology and state policies in favor of financial concentration and the global colonial agenda; considering that popular insurgencies have manifested themselves in favor of the rights of peoples, democracy and another possible world; it is incumbent upon critical legal thought to occupy an important role in the interpretation, visibility and reflection of alternative horizons to the proposals deployed in Our America.  

 The fundamental objective of this project is to discuss, from the different realities of our continent, the strategic uses of law made by social actors: social movements, civil society, the State and capital, in relation to politics and the economy.

We will use the multiple critical legal thoughts (Wolkmer 2017), where negative, positive and self-critical legal criticism are fundamental axes in interdisciplinary relation with sociology, anthropology, political theory and philosophy, without ever ceasing to see each process historically.