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Access to what? Legal agency and access to justice for indigenous peoples in Latin America

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  • Daniel M. Brinks

Abstract

In this paper I issue a call for a primary focus on expanding and strengthening alternative, community-based justice system, as a strategy for securing the full benefits of legal agency to indigenous and other culturally distinct groups. I do so because what lies within the formal justice system—the very system to which so many well-meaning programmes promise access—is, for these groups and their members, often partial justice at best. Many of the substantive justice claims of the indigenous are simply incommensurable with the substantive content of state-based law. Increasing access to that law, therefore, still falls short of legal agency. Efforts to increase the space governed by autochthonous justice are more likely to produce true legal agency for both the communities and their members, although they raise important issues for included subgroups, such as women or culturally nonconforming groups. Somewhat paradoxically, indigenous groups’ engagement with the very apex of formal systems, through constitutional litigation, has been one avenue for increasing that space, thus reflecting the exercise of collective legal agency in the pursuit of collective and individual legal agency.

Suggested Citation

  • Daniel M. Brinks, 2016. "Access to what? Legal agency and access to justice for indigenous peoples in Latin America," WIDER Working Paper Series 138, World Institute for Development Economic Research (UNU-WIDER).
  • Handle: RePEc:unu:wpaper:wp2016-138
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    File URL: http://www.wider.unu.edu/sites/default/files/wp2016-138.pdf
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    References listed on IDEAS

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    1. Stone Sweet, Alex, 1999. "Judicialization and the Construction of Governance," Center for Culture, Organizations and Politics, Working Paper Series qt2fc6571w, Center for Culture, Organizations and Politics of theInstitute for Research on Labor and Employment, UC Berkeley.
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    Cited by:

    1. Rachel M. Gisselquist, 2018. "Legal empowerment and group-based inequality," WIDER Working Paper Series 039, World Institute for Development Economic Research (UNU-WIDER).
    2. Catherine Boone, 2017. "Legal empowerment of the poor through property rights reform: Tensions and trade-offs of land registration and titling in sub-Saharan Africa," WIDER Working Paper Series 037, World Institute for Development Economic Research (UNU-WIDER).

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    Keywords

    access to justice; indigenous rights; legal agency; legal empowerment;

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