without paying attention to the rich discourse in Marxist analysis about the relative
autonomy of the state and for that reason the relative autonomous character of the law.
Through the analysis of the colonial project and the development project we can see
how the law became central in the constitution of subjects and the economy. In the colonial
project, law -in particular the Napoleon Code- was used for the protection of the rights of
the nascent bourgeoisie and the stability of the market and the rights to property. The
development project, with the idea of the creation of a national economy, consolidated this
process by modernizing in a European way the national economies and by keeping with the
process of the civilizing mission. By presenting the Latin American countries as backwards
and in need of development, the development project was doing the same that the colonial
project did: constituting places and subjects. This process is evident in the different
functions that the prison took in the Latin American countries and the role criminological
discourse played in the Othering of indigenous peoples and Afro descendants.
The Globalization project has used the state as part of its strategy. Through a
process of intervention aimed at securing the non intervention of the state, the globalization
project has used the law as part of a process of homogenization and stability of markets. In
the new idea of development, the state has been used as an agent whose presence has to be
limited to insure its absence. When we see the subjects that are being constituted in these
projects what we see is that there are some colonial elements in the power of the law.
We
want to take Quijano’s idea of a coloniality of power and show the colonial elements that
exist in the globalization project and the continuities that we can find in these three projects
if we use a perspective of the long duree. We take a post Occidentalist perspective,
because, following Mignolo and Coronil, we find that in the law there are elements that are
central in the occidentalization of Latin America and the otherization of its peoples.
In the following sections we want to analyze the European design if criminology
and criminal law and show how it shaped the identities of Latin American subjects.
Criminal law and criminological discourse are important elements because they show a
27
Ruy Mauro Marini. “Las razones del neodesarrollismo. (respuesta a F.H. Cardoso y J. Serra). Revista
Mejicana de Sociologia (1979). At 75.
28
For the New Zealand case see Janet McLean. “From Empire to Globalization: the New Zealand
experience.” 11 Ind. J. Global Leg. Stud. 161. (2004). In this article she introduces the concept of judicial
imperialism and globalization. On the same topic see, Anne Marie Slaughter. “Judicial Globalization”. 40
Va.J. Int. L,. 1103 (2000).
9
Convention