Abstract
Analysis of two court cases involving indigenous migrants, one in Oaxaca and one in California, shows what justice means for these people, how the effects of the state are constructed, and what kind of relationships people establish with what we call the state and the justice system. Despite the differences between the two cases, the indigenous subjects involved ended up experiencing these situations in similar ways. They live on the margins of the state and are largely removed from the law as a procedure and justice as an ideal.
El análisis de dos casos judiciales que involucran a los migrantes indígenas, uno en Oaxaca y otro en California, muestra qué significa la justicia para estas personas, cómo se construyen los efectos del estado, y qué tipo de relaciones establecen las personas con lo que llamamos el estado y el sistema de justicia. A pesar de las diferencias entre los dos casos, los sujetos indígenas implicados terminaron sufriendo estas situaciones de manera similar. Viven en los márgenes del estado y lejos de la ley como procedimiento y la justicia como ideal.
When the neoliberal consensus speaks of stability it refers to stability in market and investment expectations, never in those of people. In fact, the stability of the former can be achieved only at the expense of the stability of the latter.
Michael Kearney’s (1996) approach to anthropology was noteworthy for favoring a global perspective, understanding the position of subjects in the local structure, and assessing the history of the nation-state in this process. He thought that the category of “the peasant” had become distanced from contemporary history and sought to overcome dualistic and modernist views. In his work (1996; Kearney and Nagengast, 1989) he often saw peasants as having the power to explain current social changes. In his view, the peasants he studied—mostly indigenous migrants in the United States—transcended the state’s definitions of power and served as a sign of the weakening of the state. Here I seek to continue Kearney’s analysis by focusing on two court cases that can be used to rethink migrant peasants’ relations with the state. The two cases, one in Mexico and one in the United States, involved members of the same indigenous town. Through them we can see the effects of the justice system and the state on people and their communities and the ways in which the contemporary social world is being constructed.
Anthropology has historically been interested in the state. Originally, anthropologists wondered about the existence of the state among primitive peoples; later they undertook various comparative analyses and built classifications of political systems. Ethnography was their main methodological resource. Although other disciplines had something approaching this method, anthropology was the first to become aware of its tremendous importance. Since the mid-twentieth century and with a noticeable increase since the 1980s, successive transformations in the social science fields that address the state have, on the one hand, drawn political science and sociology to ethnography and, on the other, caused anthropology to move away from its traditional communities of study in analyzing the state. These changes have generated a fruitful relationship among disciplines that study the state, along with an appreciation of ethnographic approaches to the study of these issues. Abrams (1988), for example, has suggested analyzing the state as consisting of the state system and the idea of the state—the former referring to a set of institutional practices and the latter to a reification of that set of practices. For Abrams, addressing the idea of the state allows us to understand it better. Timothy Mitchell (1999: 78–79), in contrast, says that these are two dimensions of the same process. The state must be seen as an “effect” arising from material practices that have an abstract and immaterial aspect. This produces, among other things, the feeling that the state and society are two separate and completely different fields: We must take such a distinction not as the boundary between two discrete entities but as a line drawn internally, within the network of institutional mechanism through which a social and political order is maintained. . . . This approach to the state accounts for the salience of the phenomenon but avoids attributing to it the coherence, unity, and absolute autonomy that result from existing theoretical approaches.
From this perspective, the essence of current policy is the constant reproduction of effects that generate the appearance of a world divided between the state and society or the state and the economy. Thus the state seems an abstraction distinct from its concrete social representation—a subjective ideal regarding the objectivity of the material world. The state, in this sense, goes beyond Marx’s (1985; 2000) idea of a parasitic machine at the service of one class to ensure the exploitation of another and even beyond that of Weber (2008), who saw it as the legitimate monopoly of the use of violence. Seen this way, the state must be studied beyond its materiality, and we must focus on its effects on the micro level and on everyday practices. Anthropology, of course, has much to say in this regard.
Josiah Heyman (1995) argues that anthropology may have arrived late to key discussions of the state but, in doing so, has made a fundamental contribution with its micro-level analysis. The challenge, in his view, has been connecting micro-observations with macro-interpretations. Akhil Gupta (1995) suggests that anthropology has contributed significantly to these debates because its careful and lengthy ethnographic analyses allow us to perceive the physical presence of the state and its effects. The state is built of imagination and everyday practices, says Gupta, and representations are contested and constructed in public culture. For these reasons, it is now acknowledged that anthropology can tell us much about the conception of the state, which is defined in areas of cultural struggle made up of the visible practices of state institutions through which people experience it.
One of the areas in which the effects of the state may be clearer than elsewhere is the law. Mitchell (1999: 78) says that, although we prefer to think of the law as an abstract code and society as the domain of its practical application, code and practice are inseparable. In many ways, the law is an ideological screen that is imposed on the real power of discipline. In the following pages I will present two court cases that affected members of an indigenous Mixtec village. One case took place in Oaxaca, Mexico, and the other in the California countryside, where people from this village have lived for decades. I shall analyze the effects of the state, through the law, on indigenous migrants in the United States. My starting point is that law and justice may be a privileged place for the observation of the role of society and the state in the contemporary world.
The Cases
Most of the fieldwork data come from a study I conducted in the village of San Juan Mixtepec, which has a long history of immigration within Mexico and, for approximately 40 years now, a strong and sustained presence in the United States. The geographical dispersion of this village is one of its contemporary features, and the central actors in the following ethnography belong to what the literature on migration has called the second generation or the first-and-a-half generation. 1 The community of San Juan Mixtepec was originally located in the state of Oaxaca, but through migration in the twentieth century it spread first to the southeast and later to the agricultural fields of northwestern Mexico. In the 1980s community members began to move to both coasts of the United States.
Oaxaca: Fraud in the Sacriputla Savings Bank
One of the effects of international migration in Mexico has been the proliferation of microbanks in many migrant towns. According to the founding documents of the first of these banks to be established in Mixtepec, the Xuu Nuu Ndavi (Mixtec for “Poor People’s Money”), these are banks that bring financial services to populations that have traditionally lacked them. When one of them, the Sacriputla Savings Bank, unexpectedly closed, leaving hundreds of people affected and making off with nearly 100 million pesos
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that would never be seen again, despair spread throughout the municipality and even to California. Most people had kept their U.S. migrant savings there in the hope of building a house or supporting the elders of Mixtepec. One of the web pages created by the town’s migrants, for example, began to contain messages such as the following (Yahoo Mixtepec group, December 2006):
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Hi: I’m Rosa. I wonder what the information on the Sacriputla bank is because about year ago we returned to the United States and my dad has money in that bank and my grandmother lives there and called him to tell him that the bank had closed and I would like to know if you have any information and if it’s going to reopen or not. . . . Well, I hope you get my message. Yours truly, Rosa.
To understand this situation, I conducted interviews with people affected by the fraud and with several women employees of the institution. The stories I gathered over the months were devastating from several points of view.
The employees felt that, when the owner was not captured and brought to justice, the town and the former bank clients had focused all their anger on them. All of them were indigenous women from the town, and they were charged with fraud and investigated as complicit in the crime. One of them remains in jail to this day, while the other two have been able to defend themselves with recourse in law (amparo) with the district judge.
The victims did everything they could to get their money back and send the guilty parties to jail. They met with the municipal authorities and made repeated visits to the offices of the public prosecutor and the attorney general, all for naught. The opinion of María (interview, Mixtepec, August 2007) reflects the prevailing feeling among the affected—their distrust of the justice system: The day the bank closed, some of us went to talk with the public prosecutor. There they told us not to alarm people—that the matter had to be taken calmly, that we had to wait. Then we thought about it and went to speak with the AFI [Federal Investigation Agency] in Oaxaca. They did not heed us either. They said, “Don’t worry so much, it will all be dealt with calmly,” and so we came back, and nothing. Then some people came from Mexico City, from the national attorney general, to take our complaints. They made people pay; members who had had more than 100,000 pesos had to pay 500 pesos, and if they had had a million pesos it was 1,000 pesos, something like that; so they got a lot of money, about 120,000 pesos, from here, but same as always, they never answer what is going on or whether they know anything about the owner.
Both those affected and the bank employees realized that there would be no justice in this case. Increasingly they understood that their problems were not a priority for anybody in the state or the justice system. After this, most of them tended to see the judiciary as an imposing structure that could hardly be mobilized for their protection—a faraway figure very distant from their interests, a power that they could not possibly counteract. The end result was sharp division among those affected and feelings of abandonment and despair. “A moment came when we were alone, without a manager or help, with nothing to say to people demanding their money,” said one of the employees. Alone and facing this structure, the victims quickly lost cohesion.
Jean and John Comaroff (2009: 34–35) have shown that in many countries the law tends to build increasingly high barriers for a substantial part of the population. As Rosario (interview, Mixtepec, August 2007) put it: I think it is highly improbable that we’ll recover the money, because, if the owner doesn’t show his face, I don’t know who will pay. Some government agencies have told us that they are going to give jobs, a program, projects so that we can work and recover something. But some have already given up, while others continue fighting for very large amounts of money. Now people are divided: some go here, others there. They don’t even know where to go.
California: Living Among Pesticides in Weedpatch
The other case, from California’s Central Valley, at first glance appears entirely different, but it has certain common features from the point of view of the people of Mixtepec. Mixtec people began arriving en masse in the valley during the 1970s, gradually becoming a very important workforce for agricultural activities in the area. The San Joaquin or Central Valley is a vast territory that produces more fruit and vegetables than any other place in the United States. Here Mixtec and other indigenous people from Mexico and Central America, along with Mexicans from states other than Oaxaca, share ways of living and working. The work is hard, often involving temperatures over 35°C and being in fields that are constantly being treated with pesticides with serious health effects. One night in 2003, a pesticide spill put the health of many families in jeopardy. Weedpatch is a small town on Highway 58 between the cities of Arvin and Lamont. It is known for having inspired John Steinbeck’s The Grapes of Wrath. Here I interviewed in depth several of those involved and activists or human rights and labor rights workers in the valley and gathered a variety of information from other sources.
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Mauricio (interview, Weedpatch, September 2006) explained the event as follows: That pesticide thing . . . yeah, we and another 26 families that live here went through that; it was very, very . . . how could I put it? A very fatal afternoon, you could say, because they had some crops opposite here—I don’t remember what crops—and they came to work at night and spilled the pesticide. Since the wind was blowing from there, we were the most affected, those of us about 50 meters away from the field. I remember we were out here with the kids and suddenly started feeling bad, with headaches and burning eyes. The children began to cough, and I got scared. I told them to get into the house and close all the windows. We were told that the ambulance would be here shortly to help us, but that did not happen. We spent almost three hours here with the children, with them crying and with their eyes irritated; they’d go into the bathroom and throw water over their eyes, wet their face. My girls began vomiting, and others started coughing really hard. I had to get my family out. I got them into the car, and we stayed about a mile and a half from here, where there’s a store. All the neighbors who were leaving went to the same place.
A few days after this event, residents of the affected areas decided to sue. Not all the neighbors wanted to participate in the suit, because there was no certainty that they would win. However, the suit was successful and resulted in substantial compensation. As recorded by the few media that covered the news, three parties were found guilty: the California Environmental Protection Agency, the company that leased the land to grow onions, and the company in charge of the pesticide. They were required to pay about US$3 million.
The turning point in the case came when one of those affected, a Mixtec family head, got in touch with a legal-aid office where other San Juan Mixtepec members worked and it agreed to support and guide the community in the case. After more than four decades in California, Mixtecs were familiar with U.S. judicial procedures and mechanisms. The words of Mariano (interview, Weedpatch, September 2006), a Mixtec worker in a center for labor rights, clearly reflect this capital: It was a little difficult to find the person in charge of the place, because the owner of the land rents it to someone else, and this person who leases the land had hired someone else to spray the pesticide. Legally, we knew, according to the research and data provided by the Agriculture Department, exactly who had been in charge of the pesticide, because here, to apply pesticides you have to sign up with the date you’re going to do it, what you’re going to use, what pesticide it is, and how much, and, in addition, the company has to be registered. That is the law, because if something happens, then there’s all this information. So we went to that agency to get the records of who had been in charge of the pesticide. And when we got the information, we went directly to the responsible party, the company that had spilled the chemical. There we learned that it was a chemical that is buried underground to break up the soil so that they can grow carrots or onions or some other vegetable. They inject this chemical into the soil. In this case they did not inject it properly, and it came out and spread toward all these apartments. We also learned they had used this chemical in World War I and it is called chloropicrin. Having connected all the dots—the chemical, the agency responsible for it, everything—we made a claim against the insurance agency of the company, because the company had to pay. The insurance paid: they paid the medical expenses, paid the doctor and all, for those who were affected. But the case lasted two and a half years, almost three. In the end it was won. Having been exposed to the chemical may have consequences in the future, but justice was done. The people were compensated.
We should not draw quick and happy conclusions from this case. First, pesticide problems in the Central Valley persist, and it does not seem that they will disappear any time soon. Weedpatch is located in Kern County, which has the biggest pesticide problem in all of California. Since 2000, three of the four most serious pesticide incidents have occurred there. According to county regulations, companies that apply pesticides are not required to notify the people living in the vicinity of the place where the poison will be applied; they are simply required to stay more than a quarter-mile away from schools or homes. 5 California leads the United States in pesticide use, employing approximately 315 million pounds of active ingredients of pesticides per year. More than 90 percent of these pesticides are scattered in the environment because they are applied as sprays, powders, or gas. They may remain in the environment for many days, weeks, even months after application and can be very toxic. According to 1997 studies carried out in California, pesticides used in agriculture are 4.9 times more toxic to the environment than the pollutants used in manufacturing, mining, and refining. 6
Two weeks after the incident in Weedpatch, California Senator Dean Florez made inquiries into the matter, interviewing other affected parties and getting field information. He then introduced the Pesticide Drift Exposure Response Act (SB 391), which was passed in 2004. The new law is intended to improve the response to pesticide emergencies and help pay the medical costs of victims exposed to these chemicals. Although some acknowledge the importance of a law that may improve the situation of agricultural laborers somewhat, critics point to the fact that the law says nothing about instituting more control over the use of chemicals in areas close to homes or schools (Ortiz, 2005). For some leaders of antipesticide organizations, the law in fact fosters corruption and lack of control in the application of chemicals. “It is not a good proposal,” says Paula Leon, a resident of Bakersfield (quoted in Ortiz, 2005), “because what it says is that those who violate it can continue to do so since, after all, they’re going to pay our medical bills.”
Authorities see no problem with pesticides. The use of these products is not out of control, according to Kern County Agricultural Commissioner Ted Davis (quoted in Ortiz, 2005): “When we have 10,000–15,000 applications a year, one or three incidents are a very small percentage compared with the number of pesticide applications.” For Senator Florez, in contrast, the risk is not just to agricultural workers but also to nearby residents and schools. With the growth of the state, he says, the distinction between urban and rural spaces is getting narrower and therefore the risk is general.
The Mixtecs who were affected by the poisoning in Weedpatch continue to live in the same apartments. They have received notice that their children will receive financial compensation when they turn 18. However, no one can guarantee that this situation will not be repeated. Quite possibly, Mexican migrants interested in staying in this line of work will have to accept exposure to dangerous pesticides as an occupational hazard.
Discussion
It is apparent that ethnography is an appropriate method for understanding the effects of the state on a population. Taking a close look, as anthropologists or those who use ethnographic tools do, can provide a deeper view of social facts. Gupta (1995) and Mitchell (1999) say that the ways in which people commonly and daily encounter the state help them to construct an image of it. This is precisely the type of information that is obtained from fieldwork. However, as Gupta explains in his study of state bureaucracy, we must be aware of the limits of ethnography. It is not possible to wholly “be there.” That being said, and given the information collected, how can we synthesize these different experiences? What do these cases tell us about the society we have constructed?
First, let us look at the subjective dimensions of the law. The law is an important producer of the ideas, images, and representations that make up the social mind. Subjectivity is constituted by the practical evaluations made by subjects—experiences and “thoughts rooted in those objective relations” (Auyero, 2004: 5). The people I met during this research in Oaxaca had learned long ago the assigned value by which they were defined and evaluated by the rest of society and the state. They knew that when they were “in the midst of the law” they had come to a dark place, a place difficult to make transparent in any way. However, they tried. They struggled to redefine their present. “I’m going to stay in the village. I’m going to continue here, because if I go now they’ll have all the more reason to say I was the one who stole all that money,” said Victoria, one of the former bank employees. For her and possibly many others affected by the fraud, the only remedy came from their own individuality. For her what mattered was to maintain her dignity—to keep her name and that of her family clear. When individuals confront the state and the justice system, the immediate result is deepening individualism, a personal search for solutions.
Santos and García (2004) have argued that we live in a world in which a large part of the population lives, on a daily basis, under a false “social contract,” a contract in which they exist as lumpen-citizens. The law, in this sense, helps foster state neglect through the promotion of the values of individuality and the dissemination of strategies that drive people to consider their precariousness as a personal failing that they can overcome only through individual effort. What we see in Oaxaca is an almost completely impenetrable and weighty state and judiciary, a structure whose ineffectiveness creates division among people affected by the same problem. “We were left alone,” said one of the former employees. As the barriers created by the law became increasingly high (using the Comaroffs’ metaphor), people reproduced a negative image of themselves and a feeling of tremendous distance from the state. In sum, the Oaxaca case shows how, given their abandonment by the state and the sterility of the justice system, people became divided. Now some local relationships are based on mistrust and hostility; people have few or no expectations of the justice system and the state and know with overwhelming certainty that their only security comes from individual action and personal effort.
Adding the lack of institutional and social networks to support affected groups with legal advice makes the division even easier to understand. In this sense, the most notable effect of the state here is demobilization and the creation of deep rifts. Paradoxically, anger was aimed not at the state and the justice system but ultimately at other villagers. In terms of social subjectivity, the division and unrest produced by the case reinforced the uncertainty and existential fragility of people who experienced these situations daily. This supports Santos and García’s (2004) view that in the neoliberal model economic security depends upon the insecurity and fragility of the people. People live this uncertainty and respond to it in a practical manner in terms of a scheme that is inherent in practice (Bourdieu and Passeron, 1996). For example, days after the bank had closed, I spoke with Manuel, an old migrant who had been back in the village for about 10 years. He had lost approximately 100,000 pesos through the fraud, a really important amount for him given that he had no income. When I asked why he had not joined the suit, he said, “Because, you know, justice is very expensive.” He was referring not just to the costs of lawyers and paperwork but also to what it costs to make the law work in Mexico. Several studies in Latin America have shown that alternative mechanisms such as the speeding up of procedures with additional payments, the preparation of false documents, and the removal of documentation are part of the state’s legal game (Auyero, 2004; Das and Poole, 2004; Mujica, 2011). Legal action is expensive if one wants it to work. The law acts, paradoxically, more through what it fails to do than through what it does. Its perversion lies precisely in what it is not and never will be.
Now, let us look at the California case. Here we have a social landscape defined by ambiguity. We have transparency in procedures, institutional clarity, and a solid legal system that ends up confirming the subordinate position of the Mixtec people in U.S. society. These people will continue to live under precarious conditions. That said, the law can be mobilized against injustice. There is visible social citizenship—procedures and institutions, compensation systems, and a civil society that can aid and support legal proceedings. At the same time, these mechanisms confirm, set, and, to some extent, “anchor” the inferior position of Mixtecs in U.S. society.
Just as individuals are abandoned to their fate in Oaxaca, in California too there is structural neglect. Some indigenous people in both Mexico and the United States live in places where it is difficult to find a balance between what Durkheim (1973) called the “individual self” and the “social self.” The division of people resulting from experiences such as those described here indicates that the social self is increasingly limited to a minor role while the individual self becomes the sole source of agency and transformation.
The ambiguity of the law in the United States is reflected in the views of Mixtecs about the case and its outcome. Those who filed the suit argue that “justice was done.” For them this is true, and it would be difficult to suggest otherwise. At the same time, the law helps perpetuate the poor living conditions of Mixtec migrants by contributing to the repetition of these events. However, many Mixtecs firmly believe in the greater possibilities of U.S. law and many other U.S. things. As Ricardo, a young migrant who has lived for several years in California, put it, “Here in the United States we got the chance to improve ourselves.” Those who won the suit are happy, although they do not like the fact that the money for their children will be released only when the latter become legal adults. However, Ricardo said, “My skin and my eyes are not the same. My eyes are always red and watery,” and people told me that doctors had said they could not scientifically assert that the pesticides had caused all the problems. Nor can the people be assured that there will be no further consequences of the poisoning. People think that the doctors are on the side of the companies and the state and this is why they will not provide a definitive opinion on the chemicals. In short, they are happy that justice was done but are resigned to the fact that they may suffer additional effects, including further poisoning, in the future.
If we look at the two cases side by side we can see some other things. First, the legal results obtained by the indigenous migrants speak volumes about the relations between them and the state. They help define the state and describe how it behaves and what we can expect when we confront it. Because of this, interaction (or lack thereof) with the state helps create the illusion of separation, reinforcing the idea that the state is an entity with clear and definite contours distanced from society. The experience also presents the state as Nietzsche’s (2005) cold monster. The state lies in Mexico when it promises equality before the law and law enforcement, and it lies in the United States when it claims to respect individual rights but ignores them to maintain the structural inequality of an economy that feeds off the fragility of workers. And Mixtecs know, as Victoria told me, that someone who lies can no longer be trusted.
From a transnational perspective, the cases illustrate the reproduction of power and domination through innovative mechanisms that cross borders and extend beyond the limits of the nation-state. The law is at the center of the ways in which power is reproduced and fulfills its role in the political economy of which migrants are part—in the midst of political and productive precariousness in Oaxaca and agricultural capitalism in California. In the experience of migrants, the law and the economy do not behave like separate and autonomous entities. On the contrary, the effects of the relationship between Mixtecs and the law end up contributing to the economic model of neoliberal capitalism. The law and the economy work as a team.
The law has been instrumental in the history of the Mixtec people, whether through its absence or through its excessive presence. Law and justice systems have been a rich source of information that has helped build the ideas of the state and justice, and they have helped to consolidate a particular kind of capitalist economy. These two cases show that indigenous migrants exist in constant transnational transit through a variety of injustices. Residing in another country does not resolve their marginalization and exclusion; on the contrary, they remain part of the lower strata of society in both places and, in this sense, live under conditions of structural injustice. Chronic injustice in Mexico is due to lack of jobs and limited access to health care and to an impartial and efficient justice system; chronic injustice in the United States entails legal vulnerability and the poor living and working conditions of the capitalist agricultural environment in which they operate.
As Foucault (2008) says, governmentality and discipline are expressed in multiple ways. In this article I have looked at the legal complex (Rose and Valverde, 1998) as key to the constitution of the disciplinary society we live in. But the law should be seen not just as an ideological mask (Marx, 2000) but as one of the core technologies of life management (Rose and Valverde, 1998). The law as a set of abstract and impartial procedures is a fiction, but it is constitutive of subjectivity, consciousness, and the possibility of transformation in the lives of people.
The law is in many ways an accomplice of the order of things. Surprisingly, although the law is expressed in such different ways in California and Oaxaca, for Mixtecs it still produces a sense of abandonment and hopelessness. Poverty is a structural condition on both sides of the border, an energy field that it is difficult to escape. Transit through lands that, in legal terms, belong to no one (Santos and García, 2004) leads to encounters with injustice, savage capitalism, and exclusion. Both in Mexico and in the United States, Mixtecs live on the margins of the state (Das and Poole, 2004), transiting through archipelagoes of injustice. They have been thrown into a state of nature—not the one described by Hobbes and Rousseau but one embedded in the richest areas of agricultural capitalism. The indigenous migrants portrayed here are far from representing the American Dream. In fact, they experience a rather perverse combination of Mexican and American dreams and nightmares.Their experience of the law translates, for them, into abandonment and absence.
As Deborah Poole (2006) argues, the law and justice are not the same thing. Justice is increasingly understood as a moral ideal of communities apart from the promises of the state. Justice cannot be found in the law. On the contrary, the law is made up of procedures and formalities such as courts and police systems, all of which are very distant from justice as an ideal. The dominant discourse of the law, says Poole, assumes that law and justice are the same and, moreover, that justice as an ideal is expressed, almost naturally, in the law. The cases presented here show that the law can be understood as a set of techniques and procedures consistent with the mythical founding discourses of the state. Justice, however, is an unattainable ideal that exists in the field of ideas and wishes. Seen this way, the law and justice go their separate ways and rarely meet.
The violence of the law as experienced by these migrants lies in its ability to name—to define and delimit what is allowed in the forbidden, the legal in the illegal—on a daily basis. It exists in established discourses. It is a regime of truth and discourse in which migrants are an empty and irrelevant category. In this sense, the law’s violence rests heavily on the fact that when it sanctions or punishes, points or indicates, it offers true images of certain categories and social places, helping establish the subaltern position of whole populations. Furthermore, because of the way it operates, the law ends up confirming social hierarchies and inequalities of all kinds. In contrast to what it promises, it falls apart at the slightest contact with the reality of people.
Walter Benjamin (1978) said that legislation creates power and, to that extent, is an immediate manifestation of violence. He also said that the expressions of justice, violence, and the law are complementary, as are the lethal and the legal. This is consistent with the cases presented here. Peter Fitzpatrick (1992: x) has defended the idea that “modern law is a form of this white mythology. It shares origins and a sustaining dynamic with the general mythology of modernity and it is a key character in the mythology.” According to Fitzpatrick, the law is based on a mythology of white supremacy that has provided the European imperial project with a sense of purpose. The contradictions of the law can be understood only in terms of its mythical dimensions.
The law is a central aspect of the state. In many ways, it expresses and supports it. For these reasons, when anthropology insists on its social and contingent nature, showing its contradictions and effects in a given society, it appears problematic and overcritical. Michael Kearney firmly believed in a critical anthropology, and many of us have tried to follow him. Of course, my ultimate interest is to contribute to an ethics of justice in law and the state. Anthropologists all too often see injustice where we work. It is time, as Linda Green (1998) suggests, to start reflecting on these things. Given everything said so far and the conditions of injustice under which migrants live, we can understand that their movement is not, as we have thought, from South to North, from backwardness to development, from poverty to abundance. On the contrary, most of the time this movement is through the margins of the state, far from the majesty of the rule of law. It is a South-South movement in which migrants have become part of what Balibar (2005) called the Third World within developed countries.
The history of indigenous peoples is a story of surviving conquest and colonization. Nowadays, this is a story of surviving globalization. I do not want to conclude this work with an image of migrants as devoid of agency and transformative power. I believe that the younger generations, both in Mexico and in the United States, are changing many of their difficult living conditions. Here I have addressed the structural problems they face—specifically, the state’s law. It is here that I see great difficulties in overcoming injustice. Ultimately, I believe that even though they cannot escape the state and its difficulties, they certainly manage to act in spite of it.
Footnotes
Notes
Yerko Castro Neira is Chilean-born anthropologist and Professor of Anthropology at Universidad Iberoamericana who has been living in Mexico for the past 12 years. His work addresses the points of contact between anthropology and other social disciplines involved in the understanding of the state, justice, law, and migration. He dedicates this article to the memory of Michael Kearney. Mariana Ortega Breña is a freelance translator based in Canberra, Australia.