In Colombia, ever since the Constitutional Court (hereafter referred to as “the Court”) was created by the 1991 Constitution, it is common to hear that the protection of fundamental human rights and advances in legislation on this issue have come about primarily through “landmark”1 rulings by this body. One of the consequences of this tendency to take the most controversial cases before the Court is evident in the rise of legal clinics. These legal clinics cover a range of things, including strategic litigation aimed at achieving concrete changes in the law, and they have become important focal points for the legal promotion and protection of fundamental rights. At the same time, different social movements have increasingly sought to ally themselves with legal clinics in order to present litigation that has the best chance of being heard by the Court.
One way of analyzing the relationship between legal clinics and social movements is to look at the legal results that have been obtained, in order to determine whether the Court rules in favor of or against them, and/or if it modifies the existing law in favor of the right in question, or not. In other words, analyzing the relationship between the argument in the document that is presented (the complaint) and the argument in the result (the ruling), with the understanding that the goals of the social movements can be found in the complaint that they file before the Court. A less common way of analyzing this relationship involves looking at the arguments made by the social movements and the strategic legal discourse produced with the support of the legal clinic. In this study, I will focus on this relationship, and the “translation” of discourse that happens therein, using the example of the case filed before the Constitutional Court seeking to include conscientious objection as grounds for exemption in the law that governs Obligatory Military Service (hereafter referred to as OMS).
2 Objective and methodology
This article seeks to highlight the use of different discourses in the process of making constitutional claims. It does so in order to analyze constitutional rulings from a perspective that looks beyond the outcome of the judgment; sometimes, the Court’s decisions are analyzed only in terms of how the argument is constructed and the legal interpretation that it applies. Thus, this article also takes into account the arguments used in the complaint, in interventions by citizens and social movements, in the judges’ deliberations, and in the ruling (C-728-09) (colombia, 2009b). Keeping in mind that landmark decisions are often preceded by various prior failed cases,2 it is important to look at the types of discourse used by the plaintiffs, to see the degree to which those influence the achievement of effective progress through rulings that “re-conceptualize” fundamental rights (LÓPEZ, 2006, p. 165).
However, this article also seeks to trace the interests and motivations of the complaint’s beneficiaries, and the degree to which they are reflected in the legal discourse. That is to say, to determine to what extent the movements’ goals are clearly reflected in the claims made in the case, and to what degree the Court’s ruling satisfies them. This is particularly relevant considering the proliferation of cases that seek to constitutionally promote and protect fundamental rights and that result from alliances between social movements and legal clinics. The article will then analyze the different intervening discourses in one concrete case, in order to shed light on the reach and limitations of the legal translation of a social claim, looking in particular at the way in which the discourses relate to one another, are interpreted, and limited, when joint strategies are used in this kind of alliance. This closely follows sociological and discursive characteristics identified by Bourdieu (2000 ) and Conklin (1998).3
I will begin by offering a short background of the law clinic – social movement alliance that presented a constitutional claim in this concrete case. I will then examine the text of the lawsuit as it was presented, trying to identify the goals contained therein, to then compare it with the aims of the actors that participated in its development. In doing so, I will base my description primarily on interviews with the actors that participated in the process4 and informative documentation from each of the organizations. Furthermore, I will analyze the Court’s response, contained in decision C-728-09, emphasizing the type of discourse used, and whether it adopts or rejects the discourse of the complaint and citizens’ interventions,5 in order to try to identify which of the arguments from the complaint and the interventions was considered by the judges, and how they were received. Here I will be using the record of the deliberations in the courtroom where the case file was discussed, and an interview with the Auxiliary Judge of the Court.6 Finally, I will offer some theoretical commentary on the benefits and limitations of this kind of proceeding, where an “expert intermediary” seeks to “translate” and move the struggles of social movements into the legal arena.
Between 2007 and 2008, CIVIS,7 as part of its work in Colombia, decided to support the Collective action of Conscientious Objectors (ACOOC).8 This support included training, financial assistance, advocacy work, follow-up and connecting with other organizations or institutions, in order to strengthen the work undertaken by the conscientious objectors. In 2008, as part of that support, CIVIS put ACOOC and members of the Mennonite Church of Colombia9 in touch with the Public Interest Law Group (G-DIP), a legal clinic at the Universidad de Los Andes (Bogotá, Colombia),10 to come up with joint strategies to help advance legal recognition for conscientious objection, especially to prevent those objectors from having to fulfill OMS.
G-DIP proposed filing a constitutional claim regarding article 27 of Law 48 from 1993 before the Constitutional Court, because it did not include conscientious objectors within the group of people who could be exempted from offering OMS.11 The lawsuit was drafted by members of G-DIP and the Constitutional Observatory (hereafter referred to as “the Observatory”) at the Universidad de Los Andes, in an alliance (discussed and approved) with ACOOC and CIVIS, and financed by the European Union. The case was filed in March 2009 in the name of Gina Cabarcas (member of G-DIP), Daniel Bonilla (then the Director of G-DIP) and Antonio Barreto (Director of the Observatory) and was accompanied by numerous citizen interventions.
On October 14, 2009, the Constitutional Court issued decision C-728-09, which affirmed the constitutionality of the norm in question, but determined that conscientious objection is in effect a fundamental right that derives from right of conscience, and thus that it does not require a regulation to be protected, and can be claimed directly through a writ of protection. The Court urged Congress to issue legislation on this topic.
After that, the alliance comprised of G-DIP, CIVIS and ACOOC continued to work together to prepare a bill for Congress on the right to conscientious objection, and lobbied for progress in different efforts to regulate the issue.
4 The discourses and goals within the adopted legal strategy
A first question that arises is what was the plaintiffs’ underlying goal in presenting a case like the one on conscientious objection, so that we can then determine the extent to which the social movements’ goals coincide with those of the legal clinics, and the degree to which those goals can be achieved through a constitutional challenge. Further on, there is the question of where to find these goals: in the text of the lawsuit? In the arguments of the lawyers who drafted it? In the aims of the social movements? In the way in which the Court understood and responded through its ruling? In what the judges hoped to communicate through their decision?
It’s not about trying to understand the text (of the complaint or the decision) as something objective, independent of the intention of its authors (the plaintiffs or the judges), because, accepting the idea of Foucault (1992 ), the discourse is not a simple (transparent, neutral, external) vehicle of an idea (which is external, significant, subjective). Discourse exists when it is uttered; it is a singular, subjective act with its own power and force, and it is never objective or true. But this should not stand in the way of trying to distinguish between the texts (those that are written collaboratively and trying to be neutral and truthful, as legal complaints and rulings are) from the discourses, and trying to understand the latter by analyzing not only the goals as they appear in the texts themselves, but also the goals that seem to emerge from the interests of the texts’ authors.
By distinguishing between different goals in this way, I am not trying to separate the discourse from its author, but on the contrary to understand a text’s content (which is apparently neutral, logical, and descriptive) by starting with the motivations and goals that carry all the weight of power and intentionality, and which come out in complementary texts and discourses. What appears to be the basic goal of a demand in a text does not always coincide with the participants’ interests and motivations. This way of analyzing the different discourses will allow us, for example, to see more clearly the degree to which the goals of a social movement are incorporated into a text like that of a constitutional challenge (to what extent they are altered by being incorporated there), and to what degree a text like a court ruling is receptive to a given discourse and can or does really respond to the goals reflected therein.
5 The discourses of the plaintiffs
5.1 The goals according to the lawsuit
The complaint that gave rise to decision C-728-09 (hereafter referred to as “the complaint”) is technically complex. Its legal strategy was developed over more than a year, in the context of the activities of G-DIP and the Observatory, and it reflects the participation of students and professors from the Universidad de los Andes. This judicious and cautious work is evident when one reads the text of the complaint. Its structure, argumentation, wording and technicalities indicate that it was essentially done by lawyers. The complaint’s argument is divided into four points. Two of them are technical legal arguments to show procedurally that the Court has jurisdiction to rule on the merits of the case12 and two are technical legal arguments with the basic content of the complaint: that objectors were omitted from the legal bases for exemption from OMS and that this violates several fundamental rights that are protected by the Constitution.13
The argument explicitly states the need for legislators to include conscientious objection within the grounds for legal exemption; that is, the formal objective is a declaration of the conditional enforceability or alternatively the unenforceability of article 27. It is this claim that gives the Court jurisdiction to rule, and on which the arguments of the complaint are constructed. However, the arguments are based on the assumption that conscientious objection is part of the core of the fundamental right of conscience (a line of argument that had not been embraced by the Court before) and recognition of this is in itself a goal of the complaint. So we can say that recognition of the right of conscientious objection is part of the goal of the lawsuit filed by the G-DIP (if not the key goal) because it is only in the degree to which conscientious objection is understood and recognized as a fundamental right that its legislative omission from the OMS exemptions can be considered a violation of the aforementioned rights, and that the request for conditional enforceability or unenforceability can be accommodated.
The complaint was supported by many citizen interventions that together were joined by more than 400 supporters. Several of them reinforce or deepen the technical legal arguments in the complaint, and others bring in other discourses that fall outside the legal arena (personal motivations, religious convictions, or historical proof of their traditions).
5.2 The goals of G-DIP and the Observatory
For G-DIP, this was a strategic lawsuit built around protecting and guaranteeing conscientious objection; it connected with the Observatory due to their expertise in constitutional law, in order to come up with a legal strategy that had a chance of success. Between the two, they developed the legal argumentation mentioned above.
Now, the strategy built to make it possible to go to the court with a concrete complaint comprises the legal objective. It is one way (among a range of possibilities) to achieve a goal: recognition of the right to conscientious objection to avoid the forced recruitment of young objectors to OMS. This was corroborated in interviews with Antonio Barreto (2012) and Daniel Bonilla (2012), who saw the Court’s ruling as progress, even though the Court did not embrace the formal goals of the complaint.14
Thus, we can differentiate between the formal, legal/technical goal and the essential, bottom line goal that motivated the use of a particular argument to convey that objective, which can change the way of evaluating whether or not the complaint was successful. If it is seen as a path towards recognition of conscientious objection as a fundamental right, then the strategy (the complex construction of a strategy that got the Court to rule on the issue) achieved its objective; but if one looks at the Court’s refusal to modify the standard in response to the complaint, then it did not achieve it.
5.3 The goals of ACOOC and CIVIS
Julián Ovalle (2012), a member of the ACOOC and the link between G-DIP, ACOOC and CIVIS, says “they knew” that the strategy that G-DIP proposed was “limited” to making legal advances in the recognition of conscientious objection. So he says that he understood the legal strategy that was adopted, although he admits that he had trouble reading and understanding the technical arguments in the complaint. However, while he celebrated the fact that the Court recognized conscientious objection as a fundamental right, he says it “seemed strange” to him to incorporate conscientious objection within a norm that governs OMS and consider it as a reason for exemption from that service.
He finds it strange because conscientious objection has broader implications that include opposition to the “militarization of society and the State” (OVALLE, 2012) that is reflected in the existence of OMS and the inability to object to it for reasons of conscience. He says that he knew that wasn’t the goal of the complaint, and that the complaint “had to” be like it was because anti-military sentiments “did not fit” there. He says they trusted what G-DIP was doing on the legal elements, since they were experts, and that the result seemed to him to be “a great academic document” (OVALLE, 2012). Thus, although the perspective on conscientious objection struck them as incomplete (because it did not affect the overall militaristic situation), and even problematic (framed as exemption from a norm that governs OMS), they figured that the experts knew best how to proceed. However, for them, this was one step within a larger struggle. For him, having this recognition of the fundamental right to conscientious objection “gives muscle” (OVALLE, 2012) to their fight. A supplementary “muscle”, insufficient by itself.
In accepting and endorsing G-DIP’s strategy, he says that they supported its formal objectives and that they knew that it essentially (and narrowly) sought to fight for recognition of a right, but that this did not encompass all of the ACOCC’s goals. The distinction between what they sought with the lawsuit (what they hoped to get from the Court) and their additional motivations was clear for them, and they let their objectives be translated into a legal fight that left other, broader goals to one side. In this sense the translation of one discourse into another was perceived to be of strategic interest for both G-DIP and ACOOC, because it allowed for progress, albeit partial, to be made in their broader personal struggles.15
However, even though Ovalle says that they understood and endorsed the legal strategy, with all its limitations and the risk of an unfavorable decision, there are times when that was not so clear. This can be seen, for example, in how they understood the decision and the potential to continue with the legal alliance to work on the legislation that would regulate the right to conscientious objection. They find it unacceptable that an objector would have to “prove” his or her beliefs, even though the Court expressly requires that the objector status be “proven”. For the G-DIP, without implying that nothing more can be done through other channels, it meant that if they want to go to Congress regarding what was requested in the ruling, the dialogue should proceed within the limits imposed by the legal discourse, and an effort to advance things before Congress should be made within the limitations established by the ruling. For the ACOOC, nothing the Court says and nothing that the right expresses can restrict or modify their struggle. The complaint was one step among many others to advance their social aims and motivations. The idea, then, is that if there is a law or a right that they agree with, they support it, and if they don’t, they don’t. However, they find themselves somehow having to continue the struggle within the legal arena (before with the Court, and now with Congress) and with the consequences that emerge from there. While they don’t have to modify their convictions, this will surely affect and change their priorities.
So, when does the experts’ involvement stop being “enriching” or “useful” and become “necessary” or “indispensable”? Is the choice of leaving to the experts the translation of a broader goal that doesn’t fit within the legal discourse really a free one? How can one determine the point at which that translation distorts the primary objective of the social struggle? In sum, is this appropriation of social and political problems by the legal discourse desirable?
6 The discourse of the Constitutional Court
6.1 The goals according to the text of decision C-728-09
In many rulings, the summary of the goals of the complaint takes up a few paragraphs or a few pages, but in this case several arguments are taken up again and extensively cited. This leads us to think that there was receptivity to the technical legal discourse of the complaint. The Court shows varying degrees of interest in citizens’ interventions. Among the interventions that are taken up to a large or medium degree are those that contain legal arguments. Of those that include non-legal arguments (such as social and political beliefs), only the ACOCC’s and three life stories of ACOOC members drafted by anthropology students are referred to. The others are only mentioned briefly or not at all.
The text indicates that the legal problem reflected in the complaint is whether or not the legislature committed legislative omission that violated the rights to equality, freedom of conscience and freedom of religion by not including conscientious objectors. In other words, the goal that was picked up by the decision is the technical-legal one that was formally demanded in the text of the complaint. Later, it notes that there was an absolute, not relative, legislative omission, and that the judge cannot add content to the standard. But it also affirms that the right to conscientious objection does come directly from the Constitution (which can give an exemption to the OMS) and that, as a fundamental right, it can be protected through a writ of protection. It urges Congress to pass regulation on this issue, but it imposes certain criteria for someone to be considered a conscientious objector: the person should demonstrate, through external means, that his or her convictions are deep, fixed, and sincere.
Four judges dissented, reasoning that the goals of the complaint should have been accommodated. However, the existence of a fundamental right to conscientious objection, and the potential to invoke it to exempt oneself from OMS (the goal that was determined to be the “bottom line”) was unanimously accepted.
6.2 Goals according to the judges’ deliberations
The record of the deliberations regarding the proposed decision show how the judges perceived the interests or objectives sought through the complaint, and the arguments that they considered when they made their decision. These controversies, interests and disagreements can’t be seen in the text of the decision, which is presented as “neutral” but is the result of a decision and a discussion that permeates the result and allows us more easily to see the charges that are later presented as logical, objective truths.
In the words of Bourdieu, a court ruling “condenses all of the ambiguity of the legal field; it is a political compromise between irreconcilable demands that, nevertheless, is presented as a logical synthesis of opposing theses” (BOURDIEU, 2000 , p. 185). Despite the fact that the record of the deliberations is itself a summarized, biased document –an intermediary between the discussions, the private intentions of the judges and the wording used in public – its analysis is nevertheless interesting, because it gives another perspective into the judges’ motivations.
It fell to Judge María Victoria Calle to present the draft decision. That decision took up the aims of the lawsuit almost in their entirety, and declared conditional constitutionality based on partial legislative omission regarding conscientious objectors. In the record, there are several discussions on the technical content of the complaint, particularly regarding the broad and vague scope that could be deduced from the declaration of conditional enforceability and whether or not the objectors could be grouped together with indigenous persons and people with disabilities (which turned out to be the argument used to reject the aims of the complaint). But alongside these technical aspects, the deliberations also covered other issues, indicating that the judges’ perceptions of the objectives of the case did not come solely from the text of the complaint nor from a legal/technical analysis.
They discussed the role of the citizen interventions, the importance they should be accorded, and the freedoms or limitations of content that was considered “political”. They debated whether these covered an additional claim to the case, with content offensive to the Armed Forces. These two aspects are interesting because there were many interventions, all of which were different: some came from legal centers or organizations, and others from social movements that fought for conscientious objection and that explained their reasons for calling themselves objectors, thus adding additional discourse to the case. Some used technical legal elements (protection of international law, or links between conscientious objection and the rights to freedom of conscience and religion) and others took on a personal tone, narrating their motivations for not being part of an armed group.
Now, the judges refer to “citizens’ interventions” as if these citizens were a cohesive group. Some felt that these interventions shouldn’t be given much weight in a Constitutional Court decision, arguing that “the Court shouldn’t fall for these organizations’ game” (Judge Pretelt) (COLOMBIA, 2009d, p. 10) and that “the constitutional judge can only hear legal arguments, not political ones” (Judge Vargas) (COLOMBIA, 2009d, p. 11). The need “not to fall for the game” refers to the fact that some judges saw this as part of a “strategic lawsuit” that they should mistrust. According to Judge Sierra, this type of litigation
uses the public actions permitted by the Constitution to get recognition of rights, but also to achieve political objectives – in this case, establishing that there is no obligation to provide military service […] and ultimately, to get rid of the military.
(COLOMBIA, 2009d, p. 11).
In other words, Judge Sierra interprets the goals of the lawsuit as going much farther than what the text of the complaint states, by which we can assume that by “litigation” they refer both to the complaint and to the accompanying interventions, and that by “interventions” they refer to those in which certain objectors explain their concept of war and their perception that armies increase violence, leaving aside all of the other interventions. For the judge, the contents of the interventions include broad goals that are not limited to technical legal arguments, and therefore he calls attention to the need to avoid being fooled: the Court should focus solely on the legal discourse, not other kinds.
Similarly, Judge Pretelt also calls his colleagues’ attention to the need to avoid being deceived:
50% of the interventions (56 out of 115)16 are from organizations that the plaintiffs themselves belong to – that are pouring out all their anger against the army – which reduces the weight that can be given to a supposed mass citizen engagement. He affirmed that the Court should not fall into the game that these organizations are playing.17
(COLOMBIA, 2009d, p. 10).
Judge Pretelt does not specify which interventions he refers to, nor does he say who he considers to be the plaintiffs. According to the compliant, the plaintiffs are Cabarcas, Barreto and Bonilla. A quick search would show that all of them work at the Universidad de Los Andes, but none of them are members of the organizations that submitted citizen interventions. Part of G-DIP’s strategy was indeed to carry out a campaign to get interventions, but they are not members of any of the ones that made submissions. So it seems to refer directly to the objectors themselves, who authored citizen interventions and allied themselves with some of the international organizations that joined or submitted other interventions.
But in addition to deciding the extent to which they should consider the citizen interventions, they also discussed whether those interventions were insulting or denigrating the armed forces. It was said that the interventions actually sought to abolish the army (Judge Sierra) (COLOMBIA, 2009d, p. 11), that they equated the armed forces to guerillas (Judge Pretelt) (COLOMBIA, 2009d, p. 10) and that while “citizens are free to state their case, this doesn’t mean they won’t turn to political positions” (Judge Sierra) (COLOMBIA, 2009d, p. 13). In the end, Judge Ponente tried to defend her statement, clarifying that it highlighted the commendable role and function that the armed forces play in Colombia (COLOMBIA, 2009d, p. 14).18
The grouping of the plaintiffs with the authors of the citizen interventions, the reading of what they suppose to be their “true objectives”, together with the adjectives used to describe “strategic litigation” and the “game” they want the Court to “fall for”, shows the mistrust and cautious views of several of the judges that studied these files. One could ask whether the decision that was adopted, which accepts that the partial legislative omission vaguely left open a door that turned out to be dangerous and uncontrollable, could be related to a more concrete mistrust or fear of falling for the game of organizations that denigrate the armed forces and seek to abolish the military through strategies like getting recognition for conscientious objection. However, the “neutral” technical construction (BOURDIEU, 2000 , p. 183) used in the text of the decision does not hint at any of these fears or claims related to the interveners’’ “political” arguments (or even “complicity” between the plaintiffs).
In the end, there was consensus that the right to conscientious objection is fundamental, and therefore immediately applicable, and defensible through a writ of protection. The proposal by Judge Calle was rejected (5 votes against, 4 in favor) and the alternative drafted by Judge Mendoza to declare constitutional the article in question and add in the operative section a request for Congress to “in light of the considerations of this decision, regulate the issue of conscientious objection to military service” (COLOMBIA, 2009d, p. 16) was approved (5 votes in favor, 4 against).
7 Reach and limitations of the legal translation of a social demand
The case of the complaint regarding conscientious objection is an example of the type of alliances that are formed between social movements who consider participation in the legal arena necessary or at least worthwhile, and “experts” that have mastered technical legal language. Many of these “experts” have their own clear political and social agendas, and they deftly use legal technical language to achieve sociopolitical changes or advancements. Among other efforts, legal clinics like G-DIP promote high impact litigation with the clear objective of supporting causes defended by groups that are frequently marginalized or discriminated against in the legal field. They act as intermediaries between the social movements that fight for a concrete issue that directly affects them, and the legal body (in this case the court), in order to obtain progress –like the recognition of a fundamental right—in the legal sphere.
The relationship between the “expert”, “professional”, or “connoisseur” of certain technical language and the one who lacks this expertise and is considered the “client”, “ally”, or “beneficiary” (but in any case the “layman” or “non-expert”) is always complicated. Recognizing that clinics like G-DIP act cautiously, and that the reality and the work that they do there is more complicated that what this article is able to convey, we can still ask ourselves –thinking more broadly than just the G-DIP case—to what point the legal struggle can really transmit and translate the interests of social movements (in this case the ACOOC) and help them to advance in their own fight for conscientious objection.
This, in the words of Bourdieu (2000 ), means examining the relationship between the “laymen” and the “professionals”. He argues that this relationship brings with it various problems, given the unequal power contained therein, because there is competition for the monopoly of access to legal resources, which depends on the separation between laymen and professionals (BOURDIEU, 2000 , p. 160-161). This is especially obvious in the legal arena, where the decision is the result of a symbolic fight between professionals who are equipped with unequal technical and social skills (BOURDIEU, 2000 , p. 180). The gap between the vision and the technical language, and between the discourses of the expert and the layman, leads to the construction of a different reality that implies the “dispossession” of the client/layman through translation into technical language. This happens at the very moment that the legal space is created, when those who are not prepared to participate in the game—particularly in terms of language, because they lack the necessary technical knowledge—are left out.
When the experts (lawyers, judges, legal advisors, etc.) do a technical formulation of the legal problem they consider most relevant, along with the appropriate goals for a complaint from a legal point of view, and the standards that are applicable to the case, they are separating their expert technical vision of the world from the layman’s vision held by the client/beneficiary/non-expert ally. And this separation constitutes “a power relationship that covers two different systems of assumptions […], two visions of the world” (BOURDIEU, 2000 , p. 181-182). This division “imposes a system of requirements, at the core of which is the adoption of a comprehensive position, especially one that is clear in terms of language” (BOURDIEU, 2000 , p. 181-182).
The dispossession and unequal power relations arise not only when a “non-technical”, “common” goal is translated into a “technical”, “legal” one, but from the very moment when that translation is perceived to be necessary. It creates a space where only qualified technical competence, held by experts, is indispensable, while belittling and excluding those who do not possess the technical expertise and who lack the appropriate language to engage (BOURDIEU, 2000 , p. 181). Throughout this construction of the social reality, the “experts” employ a logic around the problem and the solution that is completely airtight and inaccessible to the laymen, which “creates the need for their own services, by turning the problems expressed in ordinary language into legal problems, translating them into the language of law” (BOURDIEU, 2000 , p. 189-190).19
Conklin (1998) argues that the legal discourse happens between “knowers” and “non-knowers”, and describes legal discourse as a second-level discourse that transforms the affected non-expert’s original experience (an injury, suffering) into a series of external statements that represent those feelings indirectly, using legal terminology. When the transformation to legal discourse occurs, a story becomes a series of abstract, standardized “facts”. It is a work of “intellectualization” that claims to “represent” the experience of the other, but in reality transforms the “meaning” of the experience into an external object, expressed in technical terms that are familiar and intuitive for the intended audience, but are removed from the affected individual. This transformation and distancing occur regardless of whether there is sympathy with the affected person:
I may empathize with the witness […]. I may offer Kleenex […]. But, loaded with my special terminology, my client’s utterance becomes a sentence which I resituate into a cohesive chain of signs which makes sense to me as a professional knower. […] I choose that configuration which seems most authoritative. […]
The witness thus becomes “a case”.
(CONKLIN, 1998, p. 60).
But in addition to this transformation, once the non-knower turns to legal discourse and its technical legal jargon, going forward he can only represent his suffering/interests/struggles through the language developed by the knower (CONKLIN, 1998, p. 53). He thus becomes dependent on the knower as an intermediary to transform his own experiences into that discourse. Through legal discourse, a person’s experience is converted into a language of signs that make up what he calls a “secondary genre discourse”20 in which the person directly involved can no longer communicate in their own language: “the person harmed becomes a non-knower, an outsider to the legal discourse […]. The legal opinion or judgment or argument of the professional knower, then, functions as the site for the displacement of embodied meanings” (CONKLIN, 1998, p. 57).
In this sense, in the concrete case of the conscientious objection complaint, the experts (G-DIP and the Observatory) came up with a legal strategy to “translate” a common goal (recognizing the fundamental right to conscientious objection) into the legal discourse. Despite the fact that it seemed to be clear from the beginning that this part of the legal strategy would be limited to that point—the recognition of the right—the consequences and the restrictions imposed on the non-experts once they got involved aren’t quite as clear. The “trust” that Julián Ovalle (2012) cites, regarding the work that the G-DIP team did on the complaint, is accompanied by disinterest regarding the particular strategy and technical argument that were adopted. It didn’t matter if they chose to talk about a legislative omission or not, or if they challenged article X or article Y. It was all part of one card that was being played within a much larger struggle – one way of entering the legal debate together with an “expert”; what matters to them is “what the result can be used for”, “what they can do with that” (OVALLE, 2012).21 Nevertheless, the need to play that game in that way, and to work with an expert that translates (and in the course of the translation, limits the goals) has some concrete implications for the future.
The concrete benefits are not disputed. Clear, precise progress was made, which, according to Ovalle, “gives legal muscle” to their struggle: the Court modified its case law, accepted the existence of this fundamental right and the potential to invoke it with regard to OMS, and recognized direct constitutional protection. Now they have a recognized “right” that serves as a tool in their fight. They probably would not have achieved that without the alliance. The “translation” into legal language clearly facilitated greater receptivity by the Court, helped to achieve social and political change through a constitutional, technical legal decision, and maintained significant parts of their struggle. But in a way their fight was condensed and represented in a few legal arguments and objectives within that “secondary discourse”, where continuing to participate necessitates an expert/translator.
As Bourdieu (2000 , p. 189-190) says, the “translation” strategy comes with a certain degree of “dispossession” of the “beneficiary”, who becomes trapped in a discourse that he can’t employ, which limits him. Using legal discourse to carry out the fight for the recognition of conscientious objection led, for example, to the Court not only recognizing the existence of a fundamental right, but also imposing conditions for objectors to be recognized, and urging Congress to issue regulations. These decisions now require the objectors to continue the struggle within the legal arena.22
It is worth asking ourselves, then, whether the detachment with which Julián Ovalle perceives the ACOOC’s struggle in the face of the restrictions that arise from the ruling and the regulatory process taken up before Congress, is really an expression of independence from the power of the legal discourse and the need for an intermediary, or whether it is in fact a manifestation of a discourse that excluded him, where he was relegated to simply being the recipient of things that were decided in courts and discourses where he has no access, but that will inevitably affect him and his struggle. While there are indeed many benefits to the legal advances made in the protection and promotion of fundamental rights, it is also important to remember these less obvious aspects and consequences for social movements, before choosing the best strategy to promote and protect their claims.
Bibliography and other sources ACCIÓN COLECTIVA DE OBJETORES Y OBJETORAS DE CONCIENCIA (ACOOC). Bogotá. Available at: . Last accessed on: Nov. 2013. Albarracín, Mauricio. 2011. Corte constitucional y movimientos sociales: el reconocimiento judicial de los derechos de las parejas del mismo sexo en Colombia. Sur – Revista Internacional de Derechos Humanos, v. 8, n. 14, p. 7-33, junio. Available at: . Last accessed on: Nov. 2013. Arrieta, Aquiles. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, abril. Barreto, Antonio. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, abril. Bonilla, Daniel. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, mayo. Bourdieu, Pierre. 2000 . Elementos para una sociología del campo jurídico. En: BOURDIEU, Pierre; TEUBNER, Gunther. La fuerza del derecho. Trad. Carlos Morales de Setién Revina. Bogotá: Siglo del Hombre Editores. p. 153-220. CIVIS. International Organization. Gothenburg/Bogota. Available at: . Last accessed on: Nov. 2013. COLOMBIA. 1991. Constitución Política. Gaceta Constitucional No. 116 de 20 de julio. _______. 1993. Ley 48, de 4 de marzo. Por la cual se reglamenta el servicio de Reclutamiento y Movilización. Available at: . Last accessed on: Nov. 2013. CONKLIN, William E. 1998. The Phenomenology of Modern Legal Discourse. The Juridical Production and the Disclosure of Suffering. England: Ashgate-Darmouth. Cortés, Tito. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, mayo. Foucault, Michel. 1992 . El Orden del Discurso. Trad. Alberto González Troyano. Buenos Aires: Tusquets. GRUPO DE DERECHO DE INTERÉS PÚBLICO (G-DIP). Universidad de los Andes. Available at: . Last accessed on: Nov. 2013. ITURRALDE, Manuel. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, abril. LÓPEZ MEDINA, Diego Eduardo, 2006. El derecho de los jueces. Obligatoriedad del precedente constitucional, análisis de sentencias y líneas jurisprudenciales y teoría del derecho judicial. 2ª ed. Bogotá: Legis Editores. Montoya, Lukas. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, abril. Ovalle, Julián. 2012. Entrevista [concedida a Laura Betancur]. Bogotá, mayo.
COLOMBIA. 2009a. Corte Constitucional. Expediente D-7685. Demanda e intervenciones. ______. 2009b. Corte Constitucional. 14 de octubre. Sentencia C-728-09. Available at: . Last accessed on: Nov. 2013. ______. 2009c. Corte Constitucional. 7 de octubre. Acta de discusión, Sala Plena, No. 53.
______. 2009d. Corte Constitucional. 14 de octubre. Acta de discusión, Sala Plena, No. 54.
1. According to López (2006, p. 141), “A line of case law is a well-defined question or legal problem, under which there is space for possible answers […]. [I]t is a convenient strategy for plotting the solutions that the case law has recognized for the problem, and recognizing an emerging pattern of decisions if one exists”. Within a line of case law there can be various kinds of “landmark” decisions, that is to say, “decisions that have a fundamental structural weight within [the jurisprudence]” (LÓPEZ, 2006, p. 162). 2. As occurred, among other areas, with complaints regarding the decriminalization of abortion and the recognition of the rights of same sex partners. 3. It is important to clarify that the interaction and the work between legal clinics and social movements is quite rich and complex, and not limited to the characteristics described here. The purpose of this article is not to simplify them, but to present some elements that could be problematic. 4. Interviewees included Daniel Bonilla (2012), then director of G-DIP and co-author of the complaint, Manuel Iturralde (2012), director of G-DIP, Antonio Barreto, director of the Constitutional Observatory and co-author of the complaint, Lukas Montoya (2012), a researcher at G-DIP in charge of working on conscientious objection, Julián Ovalle (2012), a founding member of ACOOC, a link between G-DIP-ACOOC-CIVIS since the case started, and author of one of the personal histories submitted as a citizen intervention, and Tito Cortés (2012), member of CIVIS and point of contact for G-DIP-ACOOC-CIVIS. 5. Case file D-7685 in the Constitutional Court files was reviewed, along with the entire text of the complaint and the interventions (COLOMBIA, 2009a). 6. A copy of the deliberation record for Courtroom No 53 and 54 from October 7 and 14, 2009, in which case file D-7685 was discussed, was obtained (COLOMBIA, 2009c, 2009d). An interview was conducted with Aquiles Arrieta (2012), Auxiliary Judge in the office of Judge María Victoria Calle, the judge in charge of the first presentation of the aforementioned file and co-author of the Dissenting Opinion. 7. “Civis is a Swedish international cooperation organization […] Its overall objective […] is to contribute to a sustainable Culture of Peace by supporting and strengthening young people’s actions of nonviolence, and their initiatives to promote and defend human rights”. Available at: . Last accessed on: Nov. 2013. 8. ACOOC is a collective headquartered in Bogota that seeks “respect for freedom of conscience and the right to refuse to participate either directly or indirectly in war”. Available at: . Last accessed on: Nov. 2013. 9. “The Christian Mennonite Church of Colombia is a historic church of peace that has been promoting non-violence, conflict transformation and peace building” (COLOMBIA, 2009a, Expediente D-7685, Intervención de la Iglesia Cristiana Menonita de Colombia, p. 285). 10. G-DIP “has three main objectives: first, to build bridges between academia and society; second, to support advancements in legal education […]; and third, to contribute, through the use of the law, to the resolution of structural problems in society, particularly those affecting the most vulnerable groups in our community”. Its lines of action include “high impact litigation”. “High impact litigation is a form of strategic litigation that aims to address structural social problems. It primarily involves presenting public cases regarding unconstitutionality, writs of protection, and class actions”. Taken from the web site: . Last accessed on: Nov. 2013. In this article, we focus only on the litigation before the Constitutional Court. 11. Article 27 exempts the following from OMS, without charging a military compensation fee: “a. Those with permanent physical and sensory limitations [and] b. Indigenous peoples who live in their territory and preserve their cultural, social and economic integrity” (COLOMBIA, 1993).
12. There is no res judicata and there is no legal precedent (or that apply at least two of the criteria to justify a change in precedent).
13. The requirements for legislative omission are fulfilled, and that legislative omission leads to the violation of the fundamental rights to equality (Article 13), freedom of conscience (Article 18) and freedom of religion (Article 19). 14. For Barreto (2012) the extreme technicality of the complaint was a deliberate strategy, which backfired because the Court rejected the complaint using an equally technical response. But in the end, they got an unexpected but important advancement of the bottom line goal, which was recognition of the fundamental right to conscientious objection. 15. As also occurred with complaints regarding the rights of same sex partners: progress was made with the support of “lawyers, law professors, and in general a group of professionals that served as allies and participants in the strategy. […] They act as intermediaries and translate social demands into the language of constitutional rights” (ALBARRACÍN, 2011, p. 23). 16. It is strange that in the deliberations, Judge Sierra talks about 115 citizen interventions and Judge Calle talks about close to 400. In the case file, there are 11 separate written documents (in addition to the opinions of the Ministry of Defense and the Attorney General’s Office), several of which were joined by others, for a total of 440 organizations and individuals. The decision takes up and summarizes 10 written submissions and notes the number of supporters joining each one. 17. Judge Pinilla says, “the Constitutional Court can’t be an instrument for that kind of abusive strategic litigation” (COLOMBIA, 2009d, p. 12). Judge Vargas (COLOMBIA, 2009d, p. 11) also called for a reduction in the interventions while Judges Calle and Henao defended their importance. Judge Calle stated: “it is not common for there to be almost 400 [interventions] in a case. These are serious and careful statements that allowed a deeper dive into the issue” (COLOMBIA, 2009d, p. 14). 18. Judge Henao expressed his “disagreement with the disqualification of the intervening organizations […]. Personally, he did not observe insults or offense directed at the armed forces, but rather concepts that were strictly academic” (COLOMBIA, 2009d, p. 12). 19. “The constitution of the legal field is inseparable from the establishment of professionals’ monopoly […]. Legal competence is a specific power that controls access to the legal field, as it can determine which conflicts deserve consideration and the specific way they should be portrayed in order to constitute proper legal debates. Only this skill set can provide the necessary resources” (BOURDIEU, 2000 , p. 191-192). 20. “A genre […] is a particular way of perceiving the world. It is a collective phenomenon which organizes utterance and texts. […] The legal discourse is a secondary genre in that it parasitically lives off primary genres [….]. A secondary genre re-resents another’s experience. It resituates an utterance into chains of signs which other members in the secondary genre will recognize” (CONKLIN, 1998, p. 55). 21. In this sense, they see the Court’s decision as positive but insufficient, and note that it left a dangerous task in the hands of Congress.
22. Ovalle (2012), while not considering it appropriate to modify his goals to “make a good law”, states that it is “completely necessary” to continue to participate in the legal discourse, and particularly the legislative one.