States of Denial

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When Barack Obama was first elected president in 2008, some pundits declared the United States to have finally reached a triumphal post-racial stage, an era of long-awaited racial harmony after the horrors of slavery and Jim Crow segregation. Yet, almost a decade later, race remains a source of tension and injury.

The situation is not so different in Latin America, and the similarities are of great interest to Professor Tanya Hernández. In her book Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge University Press), Hernández examines the racial landscape of Latin American countries and uncovers customary laws of racial regulation that, while perhaps not as codified as Jim Crow laws, are as obstructive to genuine racial equality.

With degrees from Brown and Yale Law School, Hernández has studied comparative race relations and antidiscrimination law for over 25 years. In 2015, she was awarded a Fulbright Specialist Grant to consult on racial equality projects in France and Trinidad.

In this excerpt of her book, Hernández introduces a legal critique of race regulations in Latin America and the role of the Latin American states in erecting and sustaining racial hierarchies.


There are approximately 150 million people of African descent in Latin America, representing about one-third of the total population.1 Yet, these are considered conservative demographic figures given the histories of undercounting the number of persons of African descent on Latin American national censuses and often completely omitting a racial/ethnic origin census question.2 At the same time, persons of African descent make up more than 40 percent of the poor in Latin America and have been consistently marginalized and denigrated as undesirable elements of the society since the abolition of slavery across the Americas.3 Yet, the view that “racism does not exist” is pervasive in Latin America despite the advent of social justice movements and social science researchers demonstrating the contrary. When the BBC surveyed Latin Americans in 2005 regarding the existence of racism, a significant number of respondents emphatically denied the existence of racism. Many, for instance, made statements such as “Latin Americans are not racist,” and “Latin-America is not a racist region, for the simple fact that the majority of the population is either indigenous, creole, or mixed.”4

Thus the denial of racism is rooted in what many scholars have critiqued as the “myth of racial democracy”—the notion that the racial mixture (mestizaje/mestiçagem) in a population is emblematic of racial harmony and insulated from racial discord and inequality. Academic scholarship has in the last twenty years critiqued Latin American “mestizaje” theories of racial mixture as emblematic of racial harmony. Yet, Latin Americans still very much adhere to the notion that racial mixture and the absence of Jim Crow racial segregation are such a marked contrast to the United States racial history that the region views itself as what I term “racially innocent.”

In part, the absence of a legal critique of the Latin American comparisons to the Jim Crow United States has enabled the Latin American “racial innocence” stance to remain. My book seeks to fill in that gap in the literature and provide the legal critique. Specifically, the book is about the ways in which the Latin American denial of racism operating in conjunction with the notion that true racism can only be found in the racial segregation of the United States veils the actual manifestations of racism in Latin America. I argue that an examination of the role of the state after the abolition of slavery in regulating race through immigration law and customary law disrupts this picture of Latin America as “racially innocent.” I assess the ways in which the contemporary Latin American antidiscrimination laws seek to eradicate the legacy of racial inequality wrought by the historic racism of the state. Finally, I conclude the book with insights as to how the examination of the Latin American context may be helpful to the U.S. racial justice movement today, given the growing denial of the existence of racism in the United States.

Often overlooked in Latin American self-serving comparisons to the U.S. Jim Crow past is the role of the state in Latin America in regulating race. Specifically, upon the abolition of slavery, Latin American nations enacted restrictive immigration laws and provided state funding explicitly focused on whitening the population and outlawing the immigration of persons of African descent. Through the operation of immigration laws, persons of African descent were recast into their pre-emancipation status of marginalized peoples. Moreover, customary law (that is, the enforcement of unwritten laws established by long usage rather than legislative enactment) was also used as a tool of racial exclusion in Latin America.

When customary law is fully integrated into a society as a matter of state practice, there is little incentive to have the customs codified. What is most salient is whether there is a sense of legal obligation to be bound by the custom and have it enforced. It then follows that the acceptance of a social norm as law is also evidenced by the use of state resources to enforce those norms broadly.5 In the Latin American context, the deployment of state resources (with policing of racial segregation and dedication of financial incentives for European immigration) is the key factor for appreciating the role of law as customary law in regulating race in Latin America.

Assessing the treatment of Afro-descendants through the lens of customary law helps to elucidate the “law” part of Latin American racial histories. For example, Afro-Brazilian oral testimonies from the post-abolition period in southern Brazil repeatedly indicate the entrenched customs of racial segregation in streets, public squares, public gardens, and public parks in both the capital and cities on the periphery (“o interior”) that were enforced by the local police, who had a practice of imprisoning Afro-Brazilian violators. Such practices can be characterized as customary law to the extent that they were imposed through physical sanctions and state officials felt obligated to enforce the community norms despite the absence of a written code provision or an explicit state declaration that the customs were law. I call this the “customary law of race regulation” to denote the ways in which the social norm of racial exclusion effectively operated as a legal regime in which state resources and coercion were utilized to enforce the marginalization of persons of African descent. Thus my use of customary law focuses upon the ways in which the rules of racial exclusion were more than social conventions, but instead the equivalent of law. Considering the role of customary law thus deepens our understanding of the regulation of race in Latin America.

Specifically, the book examines the post-abolition state customary practices of policing public spaces for the maintenance of racial segregation, excluding persons of African descent from places of public accommodation, imposing racist norms in public education, establishing biased regulation of African-based religions, and structuring census enumerations to marginalize persons of African descent, first in Brazil and then in Spanish America.

Examining the large panoply of racially exclusionary customary practices, along with the legislation and funding of restrictive immigration laws, erodes the notion that Latin American states were innocent of racial regulation. To be sure, the particulars of the Latin American legal context cannot be directly equated with the U.S. history of Jim Crow segregation. Nevertheless, it is important to note how state action in Latin American racial subordination had a similar effect in marginalizing persons of African descent in the region. Indeed, the true evil of U.S. Jim Crow racial restrictions emanated not so much from the fact that the laws of segregation were codified into written laws, but from how those laws denoted the participation of the state in racial discrimination. Customary law in Latin America similarly elucidates the pernicious role of the state in regulating race.

In describing the reality of Latin America’s racial history, the book also seeks to show how this sheds light on the United States racial context today. As in Latin America, the racial justice movement in the United States today has reached an important turning point. While the formal mechanisms for addressing racial inequality have long been in place, there is a growing societal belief that it is no longer necessary for the government to be proactively engaged in ensuring racial equality.

A racial hierarchy continues to exist alongside a deteriorated social commitment to race-based programs. The early U.S. civil rights movement was astonishingly successful at making the goal of racial equality a stated national norm and catalyzing government programs designed to provide concrete access to jobs and education. However, the movement’s very success contributes to the notion that blacks and other persons of color no longer require legal assistance in accessing equal opportunity. Indeed, President Obama’s election in 2008 is viewed as the culmination of U.S. racial transcendence, so that now the United States presents itself as “racially innocent” in much the same way Latin America has long claimed to be. At the same time, systemic racism has not been eradicated, as evidenced by the longstanding institutional racial disparities in employment, educational attainment, access to health care and capital, residential segregation, and disparate incarceration and execution rates.

Thus, despite the differences in historical particularities, demographic variations, legal structures, and mode of governance, the Americas share the commonality of struggling with the enduring legacy of slavery and post-abolition regimes of discrimination. Moreover, the Americas now centrally share a rhetoric of racial progress uttered in the midst of systemic racial hierarchy. In other words, the successful civil rights movement struggle against Jim Crow segregation now places racial minorities in the United States in a situation comparable to that of Afro-descendants in Latin America—struggling against racial hierarchy without formal legal discrimination as a target. Furthermore, U.S. post-racialism undermines the commitment to racial equality laws and policies because it disregards manifestations of racial inequality in its celebration of formal equality and pursues a colorblindness that equates the articulation of racial concerns with an act of racism.6 This most certainly resonates with what has long been the Latin American approach to matters of race.

Order Professor Hernández’s book.

1 Margarita Sánchez and Maurice Bryan, Afro-descendants, Discrimination and Economic Exclusion in Latin America (London: Minority Rights Group International, 2003), 3–4, tbl.1, http://minorityrights.org/wp-content/uploads/old-site-downloads/download-78-Afro-descendants-Discrimination-and-Economic-Exclusion-in-Latin-America.pdf.

2 Juliet Hooker, “Afro-descendant Struggles for Collective Rights in Latin America: Between Race and Culture,” Souls 10 (2008), 279, 281.

3 Gustavo Márquez et al., Outsiders? The Changing Patterns of Exclusion in Latin America and the Caribbean (Washington, DC: Inter-American Development Bank, 2007), pp. 15–17; Henry Louis Gates, Jr., Black in Latin America (New York: New York University Press, 2011).

4 “Iberoamérica, ¿una región racista?” (Ibero-America: A Racist Region?) BBC Mundo, October 13, 2005, http://news.bbc.co.uk/hi/spanish/latin_america/newsid_4331000/4331708.stm.

5 Hanne Petersen, “Reclaiming ‘Juridical Tact’? Observations and Reflections on Customs and Informal Law as (pluralist) Sources of Polycentric Law,” in Hanne Petersen and Henrik Zahle (eds.), Legal Polycentricity: Consequences of Pluralism in Law (Aldershot: Dartmouth, 1995), p. 174.

6 Kimberlé Williams Crenshaw, “Twenty Years of Critical Race Theory: Looking Backward to Move Forward,” Connecticut Law Review 43 (2011), 1253, 1256.

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