ABSTRACT
The standard rule of law model presumes uniformity of law across a given national territory, with consistent enforcement, and reasonable coherence between legal domains. Latin American constitutionalism has operated within this framework over the past two centuries, yet lived experiences of formal and informal adjudication and the reality as opposed to the rhetoric of rights and obligations seldom confirms the accuracy of this model. In particular, on the periphery of most states, communities learn to regulate most of their affairs differently. It is not that the national legal order is irrelevant, but rather that it is applied selectively (varying according to type of law, and to segment of society) and that aspirational laws are often disconnected from capacities for enforcement or appeal. Moreover, at internationalborders, the national jurisdictions that operate on each side of the border often clash, rather than being coordinated. In addition to this, local non-state actors, such as informal community associations, or even illicit actors, impose rules and exercise practical control. In some economic domains, a “moral economy” can emerge that provisionally legitimizes illegal transactions in the eyes of the local populations. The stark divide between “rule of law” and “unrule of law” principles can be too reductionist to capture the tacit norms and mixed understandings that govern real practice. This chapter draws on fieldwork from a range of conflictive and differently (non-state) governed regions across the subcontinent to “unbundle” these practices. They are widespread, entrenched, but also unstable and inconsistent. They may need to be improved but for that to work they first need to be anatomized and taken seriously.
