Basic reflections for the comprehensive essay on Latin-American

multiculturalism.

Diana Solano.

Introduction.

This paper introduces multiculturalism as a political and governance strategy and delves into
how it has been implemented in Latin America. So this writing does not have the purpose of
deepening or extending what other scholars has developed on the matter—quite the contrary. The
idea is to mention the most frequent observations on this topic by an extensive group of
academics from social sciences, law and society, and anthropology of the state. With this
interest, the writing is composed of two parts. The first part begins with a conversation between
Stuart Hall, Herbore Hess, and Homi Bhabba about the differences between two key concepts:
multicultural and multiculturalism. With these authors' help, I briefly indicate how the content of
these concepts has varied over time and contexts. Finally, I expose some of the currents that
envision the potential evolution of multiculturalism by provoking a reflection focused on the
relationships or systems between individuals instead of individuals' identities—provocations that
come from the thinking and cosmologies of different ethnic minorities, primarily indigenous.

In the second part, I focus on the history and characteristics of multiculturalism in Latin
America, which implies retaking some concepts and theoretical reflections that the Latin
American academy has used to analyze multicultural policies and their relationship with colonial
history. Thus, I explain why Latin American legal academics have used the concept "Legal
Pluralism" to study and explain regulatory schemes different from Western law, which were
found in this territory long before European legal systems. This concept has been linked to a
dichotomy between Law-violence and civilization-barbarism that is important to address in order
to understand the challenges of legal doctrine and public policies in a region that, since its
genesis, has been marked by the hierarchy of races, ethnicities, and cosmologies. After briefly
explaining the so-called "multicultural turn" or the "new constitutionalism" in Latin America, I
explain some of its characteristics, limits, or failures and end with some of its benefices. I close
the second part by mentioning some peculiarities of Colombian multiculturalism.

First Part.

Multiculturalisms: an unfinished process

In 1993, Homi Bhabha affirmed that “multiculturalism” was a heterogeneously expanded

portmanteau concept for anything from minority discourses to postcolonial critique, “From gay
and lesbian studies to chicano/a fiction”. In the same way, he considered that multicultural was a
“floating signifier” ready to incarnate in any discourse used to catalog social processes where the
enunciation of differences and the interest to reach agreements or dissolve said differences
happened practically synchronous. Stuart Hall raised another distinction between these
terms. Multicultural is an adjective that describes “the social characteristics and problems of
governance posed by any society in which different cultural communities are obliged by
historical circumstances to live together and attempt to build a common life while retaining
something of their ‘original’ identity” (2019, 96). This adjective is plural because there are many
types of multicultural societies. Likewise, Hall considers that multiculturalism is a noun: “It
references the strategies and policies adopted to govern or manage the problems of diversity and
multiplicity which multicultural societies throw up. It is usually used in the singular, signifying
the distinctive philosophy or doctrine which underpins multicultural strategies” (Hall, 2019, p.
95). These strategies and public policies, instruments of multicultural governance, have a
particular challenge in modern societies: cultural diversity contrasts with the liberal and Western
imaginary of the Nation-State, which is based on the assumption of cultural homogeneity in the
framework of “universal,” secular, and individualistic values. Ideals that, as time goes by, are
perceived less and less “universal.”

Although the previous precisions clarify the conceptual path, the truth is that “multicultural” and
“multiculturalism” have changed in different spatiotemporal contexts. Hall reminds us that
multicultural societies have always existed, even long before the European expansion began in
the 16th century. Migration and movement of peoples “are defining sociohistorical conditions of
humanity.” (Goldberg 1994, quoted by Hall, 2019, p.98). Empires, colonizing exploitation
companies (plantation systems in America and the Caribbean, and industrial systems in Asia and
India), and the formation of nation-states in territories inhabited by multiple peoples or
communities, fall into the multicultural category. However, the focus on “multicultural” and
“multiculturalism” changes when the interest in designing institutions that allow us to relate from
a postcolonial logic appears on the global political agenda.

According to Hesse, between the 60s and 80s, “multiculturalism” was related to discourses that
sought to “harmonize” cultural differences in favor of the individualistic ethos of liberal
democracies and to the detriment of the criticism and protests that came from ethnic and racial
groups. Over the years, political leaders have warned that “the melting pot doesn’t melt, and that
ethnic and racial divisions get reproduced from generation to generation” (Hesse, 2000, p. 11),
which leads them to change their approach and strategy. This new approach pointed out that the
everyday and conventional expressions of racism could no longer be interpreted as isolated
problems derived from the ignorance and prejudice of specific individuals. Instead, it was
necessary to understand that these dynamics were supported by historical power structures, much
more complex and notorious than the desire of many political actors to ignore them. By the end
of the 20th century, multiculturalism was understood, among other things, as a framework of
discourses and practices from which to think about and design the future of Western or
Westernized societies’ ethnic, racial, and national identities. Under this category were issues
ranging from “racial critique” to the neoliberal version of the ethnic “heritage” industry through
the commodification of culture.

Hall suggests that this concept has changed due to three main factors. I will stop at the first factor
and only mention the last two. The first is the culmination of the global South's independence
wars. However, the transformation of some links between North and South did not mean
dismantling all the power structures that existed during colonialism. To mark “the passage from
one historical power configuration or conjuncture to another” (Hall, 1996) would be necessary to
develop a series of postcolonial processes that confronted centripetal and centrifugal forces
inside and between the nations. In the second configuration, new and old ethnic and racial
movements destabilized national narratives and traditions while asymmetric globalization
increased, putting the State and Nation definitions under scrutiny. For now, the result of these
processes is not very encouraging for ethnic and racial minorities since it is characterized by
structural inequality “within a deregulated free-trade and free-capital-flow system dominated by
the First World, and programs of structural readjustment, in which Western interests and models
of governance are paramount” (Hall, 2019, p.100).

The second factor is the end of the cold war with the idea that the Soviet development model had
a chance of success. Furthermore, globalization is the last and third factor, which tends to be a
homogenizing process of peoples and cultures with the aforementioned structural characteristics
and the rise of “the knowledge economy.” So, we have homogenizing globalization, that have a
prominent place in the state’s political agenda and, at the same time, a “proliferation” and
vindication of local differences. These local groups and communities are not just remnants of the
past but rather those who have been left behind “but returns to trouble and disturb globalization’s
cultural settlements” (Hall, 2019, p. 103). Nor do they have a common political ideology; they
can be both progressive and fundamentalist but articulate with each other to process and support
resistance movements to the globalization processes.

According to this scenario, at the beginning of the 21st century Hesse proposed that multicultural
refers to the transcultural processes between Western and non-Western groups in which exists a
dispute over the meanings of said cultural differences. Disputes that are crossed by debates on
the contents of “ethnicity” and “race.” Within the framework of the manifestation and resolution
of these conflicts, the margins and the center were forced to face questions and seek agreements
on identities and development models.

Hesse enumerates the multicultural analysis in two main processes: the first is about diasporas
formation. Transnational processes that question the nation’s imaginary as self-contained or
internal, given that these are found both inside and outside the states. The second is Cultural
entanglements, which are reflected in the creolization, hybridization, and syncretism, among
other phenomena resulting from encounters and disputes, more or less violent, between cultures.
These phenomena also question the national ideals and the social forms that are presented as
logically coherent, unitary, and ordered (Hesse, 2000, p. 22) by making visible the cultural
differences that do not fit the dominant narratives or conventions. For this reason, they tend to be
devalued, silenced, or not recognized.

On the other hand, Hesse considers that multiculturalism consists of defining and fixing the
meanings and results of said processes and disputes in national imaginaries (Hesse, 2000). This
means that multiculturalism, in line with “ism,” tends to be approached as a political doctrine. In
other words, during the process that multicultural strategies are configuring themselves on a
delimited institutional path, they abandon their potential heterogeneous characteristics (Hall,
2019). Whether we talk about conservative multiculturalism, which seeks to assimilate the
differences in the traditions and customs of the majority; liberal multiculturalism, which only
admits diverse manifestations in some controlled areas, such as the private ones, or pluralistic
multiculturalism, which recognizes cultural differences formally and grants different rights to
different groups in a communal political order (Hall, 2019, p. 96), they all go through the “ups
and downs” of a postcolonial process. For this reason, both Hesse and Hall, consider that
multicultural strategies are incomplete: although during these processes, western and westernized
societies have addressed the interventions of different ethnic and racial groups that question or
accept racialized forms of governmentality – understanding for this the political, regulatory, and
representational dimensions in the history of white European racism, as well as its consequences
both in the countries of the global north and in their former colonies- still today the use of power
and knowledge to designate “white” and “non-white” or “European” and “non-European” as
ontological bases to assign positions in the social field is a current issue (Hesse, 2000, p. 30).

According to this, multiculturalism is a set of discourses, practices, and processes that refer to
internal and transnational policies designed to face the problems of inclusion and exclusion
derived from a colonial social order in national scenarios that are supposed or imagined as
postcolonial. From this perspective, multiculturalism is interested in analyzing the processes of
dissolution of colonial institutional systems, the official moments of decolonization of peoples,
and their consequent reverberations and reconfigurations in the ideas of nation, identity,
ethnicity, and race. Hence, the category “postcolonial” refers to a highly heterogeneous,
unfinished, incomplete, and continuously interrupted process that has taken us, through different
transitions, from Western imperialism to contemporary liberal democracies. Consequently,
multiculturalism can be understood as a theoretical, political, and legal interrogation of the ways
in which said postcolonial order has been instituted, destabilized, or reconfigured. “This is the
unresolved postcolonial condition.” (Hesse, 2000, p. 12).

This fragmented and unfinished condition of “multiculturalism” makes it prone to criticism from
different points of view. Thus, liberals consider that the cult of ethnicity and the constant
recognition of differences endangers the universalist and, in theory, neutral foundations of the
liberal state, “undermining personal autonomy, individual freedom, and formal equality.” In this
sense, Hesse and Hall’s perspectives contrast with that proposed by Charles Taylor (1992), who
assimilates multiculturalism to the “condition of the desire for recognition” in terms of identity,
by excluded ethnic and racial groups. That is, multiculturalism is consummated in political
recognition without considering the historical structures and hegemonic institutions that grant
some the right to recognize and to others the passive condition of being recognized. On the other
hand, cosmopolitan positions question multiculturalism by considering that it imposes limits on
individual explorations and labels the subjects. The left also criticizes it, viewing its speeches
and claims as distracting from what could be a broader political platform that brings together and
organizes the interests and efforts of all excluded groups; according to this current,
multiculturalism privileges questions of culture and identity on material and economic matters.
However, according to Hesse, these critics have not identified that there are multiple
multiculturalisms. In other words, there is no unified theory of multiculturalism because it comes
from different cultural, political, and social movements, each with its outsider perspectives on
the dominant traditions (2000, 13-15).

Multiculturalisms, the Rule of law, and the liberal states.

Multiculturalism is then “Unsettled in the ambivalent conditions of post-coloniality” (Hesse,

p.15), and it is precisely this condition that makes it relevant today. The continuous and multiple
discrepancies from colonial times to be resolved and, therefore, the incomplete decolonization in
postcolonial times make it a current issue. These discrepancies mean that the promises of
Western democracies are compromised by the revelations surrounding the colonial world’s
unresolved racial and ethnic antagonisms in the postcolonial setting. The Rule of law is revealed
as a monumental ruse whose ideals have entrenched themselves in the theoretical field and have
been insufficient in everyday life. This is the scenario because, among other reasons, liberalism
is not and has not been the “culture that is beyond cultures, but the culture that won: that
particularism which successfully universalized and hegemonized itself across the globe” (Hesse,
2000, p. 15).

Accepting the above implies the need to reformulate some basic assumptions of the Rule of Law.
For example, the assumption that the liberal states are neutral and objective has lost its validity.
Instead, liberal structures assumed the shape of particular groups that have defended certain
versions of the world with specific ontologies. In this regard, Hall defends that “All the so-called
modern and liberal nation-states thus combine the so-called rational, reflexive and civic form of
loyalty to the state with a so-called intuitive, instinctive and ethnic loyalty to the nation” (2000,
p. 116). The “instinctive” loyalties of liberal states represent the social field hierarchically, with
categories or classes subject to phenotypes, beliefs, traditions, and lineages. Thus, liberalism is
also composed of “imagined communities,” sources of identification and belonging, which
exclude, subordinate, or belittle groups that this current of thought considers as “losers.”
Accordingly, the only way these groups have ascended in these hierarchical structures has been
through assimilation of the dominant group’s traits, forms, and aesthetics. The purpose of liberal
nation-states has thus been to “forge or construct a unified form of identification out of the many
differences of class, gender, region, religion, and locality that actually cut across the nation”
(Hall, 1992; Bhabha, 1990).

To counteract the above, Hall proposes reconfiguring the nation’s narrative. Understand that
national history is far from being a fait accompli and is in continuous construction and
restructuring. Thus, the identities, cosmologies, and memories of those who have contributed to
this imagined institutional set-up must be added to the classic narratives of the “homeland
history.” In the words of Enoch Powell, “The life of nations, no less than that of men [sic], is
lived largely in the mind.” (Hall, 2019, p.116) From this logic, the national history that comes to
life in the minds of citizens, that is taught in schools, reproduced on national days, and
commemorated in public events, cannot continue to privilege the version of the dominant group
without transgressing its principles. Feminism has contributed a lot to raising awareness of this
political duplicity, not only by pointing out the presence of women in the nation’s histories, but
also by dismantling the false binary between the public and the private from the understanding
that “the personal” has become “the political.” Similarly, historically excluded groups’ cultures,
beliefs, and traditions must be part of politics in a civic, aesthetic, ethnic, and racial sense.
Likely, this democratic coherence will mean a transformation of the liberal states as we know
them. On this aspect, Hall argues that these political transformations of a multicultural nature:

…requires at least two further conditions of existence: a deepening

expansion and radicalization of democratic practices in our social life,

and the unrelenting contestation of every form of racialized and

ethnicized exclusionary closure (whether practiced by others on minority

communities, or within communities) (2019, p.125).

Beyond Multiculturalism: Between political-ontology and multi-naturalisms

Mainly inspired by the works of Descola, Viveiros de Castro, and Latour, the ontological turn
problematizes the existence of a single reality or a single universe accessed through specific
social constructions. Unlike Multiculturalisms, this approach advocates not focusing on identities
but on the contextual and transitory relationships involving both human and non-human agents.
The above implies that the identities, product of these relationships, are not complete or defined,
but continue in the process of transformation and dislocation to the extent that movements appear
and disappear, new migratory processes arise, but also the territories changes: the river’s
currents, the land and water quality, and the species that inhabit them. This is what authors such
as Deborah Bird Rose have called the domain of “entanglement” (2005).

Thus, multicultural politics also addresses Political Ontology, which understands that all politics
supposes a series of beliefs and premises about what exists and can exist and acts according to
those beliefs. Similarly, every ontology or worldview assembles a series of political practices
and structures. Political ontology can also be understood as the analysis of the processes through
which different realities or worlds are produced, as well as the struggles that take place so that
these worlds are not caught in the “epistemic trap” of the “single reality” or “one world,” typical
of liberal states (Escobar, 2015, 34). Taking these statements seriously implies giving rise to the
hybridization between various legal epistemes with the Western ones, creating new institutions
and modifying the old ones. One of its recent products is that “National and transnational
legislation, court decisions and governance models across the world have increasingly
recognized the legal subjectivity of animals, rivers, and forest, among others beings and
relations” (Boulot, E., Grear, A., Sterlin, J. and Vargas-Roncancio, I.D, 2021, p.2).

In the Colombian case, the anthropologist Daniel Ruiz Serna has shown how this approach has
related to multiculturalism in the case of the Victims Law of 2011, which has recognized that the
territories inhabited by indigenous and Afro communities are one more victim of the armed
conflict. So:

In Bajo Atrato (Chocó), some people say that the constant presence of armed men has
scared away the beasts and the spirits or charms that used to inhabit the jungles and rivers
that constitute the collective territories of black communities. Leaders of the Embera
Katío indigenous communities of Alto Andágueda (Chocó) denounced the risk to which
their food sovereignty has been exposed due to the bombings that infuriated the Jaï or
primordial spirits that protect certain animals, who decided to leave some hunting prey
outside out of reach of the people... (2017, p. 86)

This decree, which describes the territory as a material substratum and “living integrity” (art.
45), responds to the state’s agreement with indigenous and Afro communities, who emphasize
the importance of granting agency to the forest and spirits and highlight the spiritual links that
exist between the human beings and nature. With it, Colombia approaches the Latin American
countries that have adopted the “biocentric turn” (Gudynas, 2009), as is the case of the
constitutions of Ecuador, which in the seventh chapter addresses the rights of Nature or Pacha
Mama, and Bolivia, whose preamble speaks about “the current plurality of all things ‘mountains,
rivers, lakes and our diversity as beings and cultures.” The epistemic revolution that this means
is not minor since establishing that the entities that participate in the political and social life of
these peoples are subjects of law, independent of the rights assigned to humans, is not only
aimed at protecting the visions of the world of these communities, their culture or ontology, but
also to the nature that surrounds them.

These proposals have the objective of transcending the limits of multiculturalism under the
understanding that, beyond granting spaces and moments for the exercise of other ontologies and
cosmologies, multicultural o pluricultural states must tend to give a voice and a place to ethnic
and racial minorities when they develop and implement legal theory and public policy.

Second part

The others’ law: Between violence, barbarism, and legal pluralism.

We have then that there is not just a single kind of multiculturalism but many definitions of this
concept. Definitions that are renewed, divided, mutated, and reproduced according to the spaces
and the times. In this sense, Latin America has specific challenges that shape the type of
multiculturalism that have emerged in the region. In principle, the colonization process
questioned with eloquent silence the relationship between law-civilization, and barbarism-
violence, given that European law arrived on the continent with a system of beliefs, practices,
and highly violent institutions. This process would continue through internal colonization, where
an educated and mestizo Andean center was interested in civilizing, sanitizing, culturalizing, and
whitening (Carrizosa, 2014) the “other” periphery that lived in the plains, the riverbanks of
rivers, and jungles (Henderson, 2001; Harvey, 1996). From the point of view of those “others,”
the positivist civil law of the codes was violent and much of the Catholic missions’ “natural law”
cruel1.

1 In this sense, Law 89 of 1890 in Colombia exempted indigenous peoples from criminal responsibility and from the
dissolution of collective property precisely because they were “not civilized” and therefore not subjects to general
laws. Similar provisions exempting indigenous people from criminal responsib- ility due to their “diminished
responsibility” or cultural condition were common to criminal proced- ures codes throughout Latin America in the
late nineteenth and early twentieth centuries. They coexisted with indigenous servitude and slavery-like exploitation
justified by their lack of civilization (Lemaitre, 2019, p.91).
However, from the traditional law perspective, the interpretation has been very different
(Lemaitre, 2019). Constitutions and laws have been constitutive elements of the liberal national
identity of Latin American states since, through these instruments, they obtained the qualities of
civilized sovereignties. In the case of Colombia, “Francisco Santander, the emblematic founding
father of the new republic, expressed a regional hope for a future under the rule of law, claiming
‘Colombians: arms have given us independence, but only laws will bring us freedom’ (Lemaitre,
2019, p.82). This trope, still common, is observed in the analysis of lawyers and social scientists
who consider that the region’s problems, such as violence, corruption, and inequality, are due to
the absence or weakness of the state (García & Santos, 2004) and the consequent lack of legal
effectiveness. This has meant that rights and lefts demand that the state pronounce itself and
make itself felt to materialize their respective utopias.

In other words, the binary thinking linked to the state sustains and justifies all legal and political
proposals: The barbarians (be they the corrupt elite, ethnic and racial minorities, racist mestizos,
hoarding bourgeoisie, violent and resentful poor) must be controlled, subdued or eliminated with
the law, which is romanticized as the exclusive means to achieve utopia. However, authors such
as Walter Benjamin and Freud have pointed out that this dual trope contains its own
contradiction since violence is constitutive of law. It is not possible to imagine a Rule of Law
without the threat of sanctions, given that the heavy hand of the state constitutes the backing of
the law and the judicial decision. On the other hand, the law has been the source of various
circles of violence that are cyclical in the region. It has been violent when it prohibits (for
example, belief systems, rituals and relationships with certain plants, autonomous systems of
organization of the territory), and it has been violent when it decides not to regulate specific
issues (issues of social assistance, redistribution, or historical reparations for structural
discrimination due to example) (Lemaitre, 2019).

If we omit this relationship between law and violence, we return to the principle of the trope and
assume that the barbarians are those who use violence illegitimately, being “legitimacy” a
container concept that has had as many contents as “isms” in political history. However, if the
barbarism-civilization dichotomy is overcome2, it is possible to ask ourselves how the law is also

2 This dichotomy is framed by Julieta Lemaitre in the concept of "fundational metaphor" (2019)
constitutive of those scenarios described as territories without law and, in turn, as not all the
spaces outside state regulation are violent per se. In the words of Julieta Lemaitre, the
civilization defended by liberalism can also be violent, and lawless spaces can be a place of
refuge (Scott, 2009; Lemaitre, 2019, p. 90).

In its eagerness to understand the territories and communities that escape formal law and the
State, the legal academy has coined the concept “legal pluralism” to highlight the existence of
other peoples or communities with cosmologies and legal epistemologies different from the
hegemonic or majority. Rachel Sieder uses the concept of “fragmented sovereignties” to address
the phenomenon of the diversity of “plural governance constellations” in the region. In this
regard, the author affirms that “legal pluralism” has always existed. Hierarchical and racialized
during the colonial system (Laws of the Indies), it was later denied and evaded by the liberal
states after the declarations of independence, imposing assimilationism as the only possibility
that ethnic peoples had of not living in illegality. In this regard, Sieder (2019) clarifies that in a
few cases, the nation-states informally reconciled the existence of other sovereignties within the
territory in cases related to agrarian law:

Yet despite the absence of de jure legal pluralism, in many countries a

de facto form of indirect rule came to characterize relations between

states and indigenous peoples in the twentieth century, as the norms,

authorities, and practices of native communites became intertwined and

superimposed on figures of agrarian law (for example, the ejido in

Mexico after the 1930s, or the comunidades campesinas and comunidades

nativas in Peru after the 1969 agrarian reform of the Velasco Alvarado

government)(p. 52).

However, the above were exceptional cases. Government strategies moved instead from eugenic
policies that promoted white immigration (Carrizosa, 2014) to nationalist narratives that denied
and hid the racial and ethnic diversity of the region while ensuring that Latin America was a
mestizo region, home of the “cosmic race” or “racial democracy” (Wade, 1995; Oslender, 2004)
where racism did not exist, nor was whiteness a socially desirable goal.
Since the mid-20th century, multiple peoples have questioned the veracity of these patriotic
stories and organized themselves to deploy various strategies such as protests, demonstrations,
strategic litigation, and political and academic alliances (Paschel, 2016) to obtain the formal
category of autonomous jurisdictions and territories within of nation-states. One of the main
achievements of international networks, which has set the legal-political guideline on the issue in
Latin America, was the ILO Convention 169, issued in 1989. Its suggestive effect promoted
forms of soft internal autonomy, where an autonomous territory and a special jurisdiction were
protected instead of sovereignties that led to separatist projects (Engle, 2010; Sieder, 2019). This
line of governance then configured the legal basis that introduced multicultural rights in the
Magna Carta and court rulings in favor of ethnic-racial minorities. In this sense, the Inter-
American Court has promoted prior consultation to ensure free, prior, and informed consent
(FPIC) about any intervention in their land, like development projects and government initiatives
that stood to affect their ways of life (CEJIL 2014).

This process has been called by Sally Merry the “Vernacularization” of transnational politics in
Latin American nations and peoples. She considers this has been one of the main strategies used
by minority groups in the region to obtain recognition of rights and the multicultural preambles.
Thus, indigenous issues have been taken to international scenarios and have transformed the
traditional verticalities of law (up-down) by networks of subaltern movements (down-up) which
have been designated as “subaltern cosmopolitan legalities” by Boaventura de Sousa Santos and
César Rodríguez (2005).

Between the end of the 20th century and the beginning of the 21st, the vernacularization of
transnational policies and subaltern legalities achieved a legal-political revolution in Latin
America that lawyers have called “the new constitutionalism” and social scientists “the
multicultural turn” (Rahier,2020). The new constitutional letters expressed the political feeling of
the Latin American people toward integrating historically marginalized or excluded groups into
their country’s projects and expanding a catalog of rights that would protect citizens from the
continuous excesses of the executive (Gargarella, 2019; Barrett, Chávez, and Rodríguez-
Garavito, 2008).
Different groups of special constitutional protection were created, including women, people with
disabilities, the elderly, adolescents, and trade unionists, among others. However, the great
protagonists of this massive legal reform were the ethnic peoples (Gargarella, 2019). Thanks to
the political activism of local indigenous and Afro-descendant communities, and the support of
transnational networks and multilateral organizations, for the first time, the Latin American
constituents declared that their states were multicultural or plurinational (Paschel, 2016; Sieder,
2019, p. 52). The above meant the beginning of a new political commitment in a region that until
then had not recognized its ethnic and racial diversity. Within the framework of this commitment
in Latin American states, usually the ethnic is associated with indigeneity, while the racial is
linked to blackness.

Brazil was the first country to adopt a multicultural constitution in 1988, followed by Colombia
(1991), Argentina (1994), Venezuela (1999), Ecuador (2008), Bolivia (2009), and Mexico
(2011). One by one, Latin American countries modified the traditional nation’s narratives by
moving from “ideological ‘monocultural mestizaje’ (‘racial democracy’ in Brazil), and ‘erasure’
of ethnoracial differences in national populations to multiculturalism and state constitutional
‘embracing’ of ethnoracial differences in a logic of state corporatism/co-optation” (Rahier, 2020,
p. 606). The instruments that shape this transit are two principals: “ethnoracial collective rights,”
and “racial equality law.” Tatiana Paschel (2016) argues that both normative instruments
responded to the domestic adaptation of global agendas in ethnoracial matters, which she calls
“political field alignments.” Unlike other authors, she only recognizes collective rights as
multicultural; In addition, she argues that both types of instruments were implemented at
different times (1980’s and 1990s for ethnoracial collective rights, and the 2000s for racial
equality laws, following the 2001 UN World Conference against Racism). However, both were
enshrined in the constitutional texts at the time of publication (Rahier, 2020; Gargarella, 2019).

On the other hand, the division that Paschel proposes is useful to differentiate the logic of each
normative discourse around the intersections between diversity and equality. Collective rights
allow peoples, communities, and their members the possibility of claiming their differences, and
anti-discrimination rights guarantee that all citizens are treated equally before the constitution
and the law unless there is a constitutional reasoning that justifies otherwise. Likewise, authors
such as Kwame Dixon (2016) show that rural communities and movements have resorted more
frequently to collective rights to protect their autonomy over the territory. In contrast, the urban
movements are interested in litigating the rights to equality and, in some cases, demanding from
the States a reparation that compensates for centuries of discrimination.

Moreover, due to the a priori association between ethnicity and indigenous, afro communities
have been forced to adapt their legal discourses and strategies to those used by indigenous
peoples, mainly concerning rights of autonomy and collective property (Oslender 2016, Goett
2017). However, Goett and Oslander clarify that the collective ownership of the territory can be
a double-edged sword because although it can be useful to strengthen and secure the autonomy
of these peoples, in the case of Colombia and Nicaragua, they have also been used as “a
governance strategy that may facilitate the expansion of state and capitalist power. The tension
between these two effects is likely to shape the contours of future struggle in the region”
(Oslender, 2016, p. 26).

In this respect, Hooker (2009) and Hernández (2019) have highlighted that law and institutions
have excluded Afro-descendants from the protection and reparation schemes that until now have
been promoted by global and national agendas because they are not sensitive to their specific
histories and needs. Colombia, Brazil, and Ecuador are some cases where indigenous people
have more constitutional rights than Afro-descendants. Worse still are the cases of Mexico and
Venezuela, where Afro-descendants do not have multicultural rights. Currently, through
legislation or jurisprudence, Afro-descendants have rights such as collective property in
Guatemala, Honduras, Nicaragua, and the Caribbean coast. For access to those, they must
demonstrate “a self-ascribed black identity, collective organization, and traditional forms of land
settlement and use” (Hernández, 2019, p.127).

Because of the above, the regulations aimed at solving the Afro problem in Latin America, as in
other regions of the world, are insufficient. Hernández argues that the current criminal approach
against racial discrimination, for example, does not address or resolve the causes of racial
inequity and supports the mistaken belief that racism is the product of the isolated individual’s
aberration and not a systemic aspect of national cultures (Hernández, 2013, 104). Along with
other authors, Hernández proposes to address racism and its consequences in the distribution of
rights, resources, and opportunities from its structural causes. For this, racism must be not only
criminally condemned but also involve civil and pecuniary compensation in favor of its victims.
The ideal would be to repair not only contemporary racism but also historical ones through
economic compensation to the living descendants of generations of victims that do not inhabit
the earth today

However, beyond the divisions between ethnicity and race, multiculturalism has not obtained the
results that its defenders announced. External agents frequently intervene in the autonomous
territories, and the members of the communities usually find themselves in conditions of poverty,
exclusion, and violence (Sieder, 2019, 53). These circumstances have led several analysts and
academics to wonder if multiculturalism, as a form of integration and legalization of legal
pluralism, has been nothing more than an artifice of the traditional elites (white, from the global
north, extractivist) to process the late 20th century protests demanding equality, recognition, and
an end to the colonial order (Hale, 2014; Escobar, 2010).

The truth is that multiculturalist laws have been implemented in very low percentages. The
characteristics of the territories inhabited by ethno-racial communities are one of the main
reasons that explain the low efficacy of these laws. Rodríguez Garavito (2011) has chosen the
concept of "minefields" to refer to the processes of recognizing and guaranteeing the ethnic-
racial communities' rights, especially prior consultation, within Colombian territory. The
communities' territories, affected by the interests of local and international mafias, governments,
and businessmen, have led to "The fragmentation and instability of multiple forms of order,
many highly violent and coercive, seem to coexist with a hyperlegalization of the political, or
what some have referred to as the fetishization of the law" (Sieder, 2019, p. 59). Another way of
describing this scenario is an "Entanglement of legalities" between the rights recognized by local
and transnational judicial entities and the informal laws imposed by mafias and businessmen
with extractivist ambitions.

For her part, Viviane Weitzner has proposed the concept of "Raw law," by which she refers to
the laws of the illegal armed groups that govern these areas and benefit directly (by doing part of
the business) and indirectly (financing by part of companies or conglomerates) of the interests of
political-economic groups and the laws that they manage to issue in matters of extraction. Thus,
the relationship between theoretically protectionist laws, political networks, and groups outside
the law give rise to what Deborah Poole has described as places "between threat and guarantee"
(Poole, 2004), Jean Comaroff and John Comaroff (2006) have called "gray areas" and Rachel
Sieder "the securitization of development." They are spaces where it is legitimate to suspend
constitutional rights and guarantees in specific regions or populations to protect the extraction of
resources within the framework of the promises of development (Sieder, 2019, 59). This scenario
supports the continuation of the law-violence trope mentioned at the beginning of this chapter, as
the violence in these "gray areas" is related to the suspension of rights. However, alliances
between some illegal groups and executive, legislative and military authorities call into question
the relationship between law and civilization and, therefore, its contrasting position in the face of
barbarism and violence.

However, the trope holds, and one of the main tools that ethnic-racial communities have used to
defend their rights and question the measures related to "the securitization of development" is the
language of rights, especially those enshrined in international instruments, to claim protection or
greater autonomy. International NGOs, legal groups, and academic groups are involved in these
processes. It is notable that the use of the language of rights by ethnic communities to protect and
defend their autonomy and resources "reflects the current global purchase of the law as a
language of politics, but also its historic importance as an idiom of both elite and subaltern
politics in Latin America" (Sieder, 2019, p. 60).

In this order of ideas, the concept of "fragmented or overlapping sovereignities" proposed by

Sieder involves a multi-scalar analysis of the situation: It is not unusual to find that different
local, national, and transnational actors compete for control of territories autonomous, and the
consequent implementation of specific forms of governance and political economy. A
phenomenon that, to a large extent, is the continuation of colonial practices and that at the same
time occurs in an institutional context where the privatization and deregulation of sovereignties
have fragmented the ideal political power of the Weberian state, giving rise to plural, partial and
lateral sovereignties, and the paradoxical "present-absence of state enforcement" (Comaroff and
Comaroff 2016, p. 28, 39).
In conclusion, multiculturalism's political geography in Latin-American involves sovereignty, de
facto and de iure, composed of "legal pluralism at the global scale where human rights,
commercial law, soft law mechanisms, and other globalized forms of ordering are superimposed.
At the same time, they are also configured through highly violent, coercive, and illegal means."
(Sieder, p. 60). The actors in the play make up multi-scalar networks (Rodríguez-Garavito, 2011)
so we can find multinational companies allied with paramilitary groups3, which in turn are
related to a political class that has governed or governs both local and national territories. The
usual presence of ethnic communities in these "gray areas" is related to the fact that the members
of the ethno-racial communities are commonly accused of carrying out illegal acts for the sole
purpose of claiming their rights. This is the case of "community leaders in Guatemala who face
criminal charges when they try to assert their rights over communal land in conflicts with mining
companies" (Mazariegos, 2014) or of being allies of illegal groups (see the “seventh-day” case in
Colombia) 4.

Despite its ineffectiveness, multiculturalism has had positive consequences in some countries.
For example, it has promoted educational processes that have strengthened the auto-
identification processes of ethnic and racial communities (Vélez-Torres, 2018); and in the case of
Brazil, "The impacts of multicultural policies together with the political agendas and actions of
Afro-descendant social movements, and especially the impacts of affirmative actions in the
educational field, have made possible a redefinition of blackness in this country" (Vásquez-
Padilla & Hernández-Reyes, 2020).

3 See the case of Chiquita Brands in Colombia. The Colombian Constitutional Court ordered the seventh day
program to rectify itself about the accusations against indigenous people of Cauca based on unsupported
interference. Accusations that put them in greater danger. https://www.eltiempo.com/justicia/delitos/chiquita-
brands-en-firme-proceso-por-financiar-paramilitares-en-uraba-625056
4 The Colombian Constitutional Court ordered “The seventh-day” show to rectify itself about the accusations against

Cauca’s indigenous people based on unsupported inferences. Accusations that put them in greater danger.
https://www.corteconstitucional.gov.co/noticia.php?T-500/16-Programa-Septimo-Dia-de-Canal-Caracol-violo-
derechos-de-indigenas-6400.
In this sense, Edwin Mauricio Lectame, Coordinator of Human Rights ACIN (indigenous organization), explained in
the interview for the program “routes of the conflict” and “Colombia Check”, that “being autonomous is not easy.
That is, not being an ally of one is not easy, because the other will not agree. It's always going to be like that, and
that's more or less what happened to us in times of war that hopefully won't come back”.
https://www.youtube.com/watch?v=RJZWk6Y8dyI.
On the other hand, it has opened the way for exchanges and discussions about moral and
epistemic assumptions between different majority and minority groups. One of the issues that has
received the most attention in these exchanges has been gender discrimination. In this respect, a
broad group of Latin American academics has been interested in showing that it is feasible to
defend and protect gender-related rights within communities' autonomous jurisdictions (Sieder,
2019, 55). To do this, the researchers have resorted to communities' ontological and epistemic
frameworks or, in their terms, "decolonized forms and languages." On the other hand, ethnic
communities have promoted legal discourses that defend the rights of non-human entities
(mountains, rivers, jungles, territories (add references)). A question that I delved at the end of the
first chapter.

Colombia

In tone with the Latin American situation, collective rights in Colombia have been aimed at
protecting mainly indigenous peoples. Between the reasons that explain the above in Colombia is
that, unlike the Afro-descendant movements, the indigenous movements had direct
representation in the National Constituent Assembly, so the problem of the Afro-Colombian
territories and needs was not addressed in the main content of the constitutional text but in one of
its transitory articles (art. 55), which ordered to resolve this issue through legislation. Two years
later, Law 70 of 1993 was issued, which created the “Community Councils of the Black
Communities” as legal persons in charge of managing Afro collective lands. This legislation
gave rise to what Eduardo Restrepo has called “ethnicization of blackness” (2004), since to
access this right, Afro-descendant communities must demonstrate that, like indigenous
communities, they meet the exact characteristics of cultural tradition and permanence in the
territory. In addition, Law 70 establishes that only state-owned vacant land can be titled, so
communities that live in or near urban areas, national parks, or areas reserved for security and
defense cannot claim title to the territory they have inhabited. However, the fact is that “Afro-
Colombians are regionally and ethnically diverse and do not all live on uncultivated lands”
(Hernández, 2019, p.127). Similarly, the titling process is lengthy and costly. It requires
historical, demographic, and cartographic studies, among others. Consequently, many Afro
communities that fail to show a cultural idiosyncrasy do not access the title of the lands they
have inhabited for a long time.

One Afro-Colombian community that benefited the most from Law 70 is located in the
Colombian Pacific. In addition to being the first formally declared Afro territory, it is also the
largest. In his book, The Geographies of Social Movements: Afro-Colombian Mobilization and
the Aquatic Space, Oslender evidence, through an ethnographic exercise, how the conditions of
this environment allowed them to consolidate an identity with culture, ancestors, traditions, and
specific practices, that qualified them to use the indigenous narrative to access collective rights.
In this sense, he shows how this black political mobilization in the Pacific Coast region is
permeated by the daily experiences of living with what he has called the “aquatic space”: a
specific set of social relationships spatialized in an aquatic environment. In this respect, Peter
Wade (1995) explains that the afro-political movements that participated in the creation of the
law 70 were principally from this territory. Their specific landscape conditions allowed them to
revendicate their ethnicity in similar terms to those used by the indigenous movements.
Nevertheless, as I said before, this is not the same case for all the afro communities in Colombia

In the same way, Oslender (2016) have highlighted that the war financed by drug trafficking
between the state and armed groups, paramilitaries, and guerrillas, has frustrated and violated the
legal protections provided by multiculturalist laws to these territories. In addition to dissuading
the communities from claiming their land titling, given that ones are tittle they cannot be
exploited, the armed groups displace the population to use these lands for planting palm oil and
legal and illegal mining (Rosero 2002, 547–59). According to data from the United Nations, in
2021, there was a 200% increase in cases of forced displacement compared to 2020. The data
also shows that “The Afro-Colombian population, mainly from Nariño and points in the South
Pacific, were the most affected by displacement” (Mosquera, 2022). Likewise, the Government
has been reluctant to formally certify the existence of Afro communities since this would require
consulting them before making decisions that affect their lands (Rodríguez-Garavito 2011, 263–
305 quoted by Hernández, 2019 p. 128). Following the above, it is not uncommon to see
different right-wing actors accusing the communities of collaborating with the guerrillas or
belonging to them when they claim ethnic rights to territorial autonomy (Asher, 2009).
Conclusions

In this writing, I speak of multiculturalism in two moments. First, I inquire about its definition by
putting three western and postcolonial authors into a conversation. A first conclusion is that
Multiculturalism and Multiculturalism refer to different things. While multicultural refers to the
characteristics of a diverse society and the governance problems they must solve,
multiculturalism refers to the political dogmas and concrete institutional paths that states adopt to
address these characteristics and their problems. After mentioning some changes these concepts
have had in the last decades, the authors conclude that multiculturalism is an incomplete and
continuously interrupted process of assembling postcolonial societies. Societies that liberal
democracies promised through their founding principles. Among the evolutionary aspects of
multiculturalism are political ontology and multinaturalism, which propose to create governance
schemes that integrate humans and non-humans in a relational fabric, where the existence of
some makes life possible for others.

In the second part, I talk about the challenges of Multiculturalism in Latin America. In this
regard, I emphasize that multiculturalism understood as the set of instruments used by nation-
states to govern ethnic-racial diversity, must address the particularities of the region: A colonial
history that lasted more than five centuries, which established a system of hierarchy of races,
ethnic groups, and cosmologies, and that excluded and transgressed the communities that already
inhabited this territory, and those that claimed their freedom through palenques or quilombos.
For them, who make up sovereignties different from the formal or central one, the relationship
between law and civilization has been contradictory, and even today, their territories materialize
these contradictions. Consequently, the multicultural instruments aimed at protecting cultural and
territorial rights are diluted and blurred in the spaces they should protect. So these instruments
are still insufficient to solve the different problems of equity and violence that affect Latin
American ethnic-racial communities. Especially for the Afro population, who do not have rights
in many countries, and in others, they must adapt to the rights resulting from dialogues between
political and indigenous elites. To conclude, I mention two relevant advantages of the "ism" in
question: Its politics have strengthened racial and ethnic self-identification in various rural and
urban spaces, and it has meant the first step for an equitable and fair dialogue between the
different ethnic and racial communities and peoples.

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