DERECHOS DE LAS Y LOS ADOLESCENTES INVOLUCRADOS EN LA COMISIÓN DE UN DELITO

The current global scenario might be explained as the process of worldwide expansion and rule of liberal capitalism (the conjunction of capitalist political economy and liberal legality) rooted in the modernity project. Liberal capitalism constitutes the regulative dimension of this order, and modernity its ontological and epistemological dimension.

Each of these elements has a dark side: dispossession/exploitation for capitalism, exception for liberalism and coloniality for modernity. In spite of the correlation, liberalism, capitalism and colonialism are usually seen as disconnected. Thus, capitalism’s origins are identified in 16^th century England, when landlords decided to create a market for land through leasing contracts (Kiely, 2005); whereas liberalism is usually conceptualised as the opposition and overcoming of monarchism/feudalism (in political terms) and mercantilism (in economic terms) thanks to the Enlightenment thinking and glorious political events (Reformation and French revolution), constituting the model for the ‘civilised world’ (Hayek, 1960).

30 These usual accounts omit the fact that colonisation is a foundational element of what Quijano (2000) calls the world pattern of capitalistic power, because this pattern was developed thanks to the dispossession and exploitation deployed by colonisation (Hall, 1992/2013; Hardt and Negri, 2000). Furthermore, the theoretical foundations of political liberalism were written at the same time as colonisation, they emphasise property rights and freedom of contract, adding juridical/political justification to the triad: capitalism-colonialism-liberalism.

The foundations of liberal rights during colonisation meant the negation of the rights of those colonised by the affirmation of the rights of the colonisers (Lander, 2000; Fine, 2009). For John Locke, in his Second Treatise of Government, the main coloniser right was individual property understood primarily as a right of the human beings over themselves and freely exerted by occupying or working on nature: individual property was the constitutive and regulative form of the liberal order (Hardt and Negri, 2009).

Locke thus saw appropriation as the foundation of property right and assumed that it did not damage others because there was enough land on earth (Olivecrona, 1974). Thus, America was considered an empty space because its population did not respond to the liberal framework. Indeed, Locke strongly defended the colonial project; for him the expansion of colonisers’ private property was the inevitable result of European reason and industrial development (Arneil, 1994; Stewart-Harawira, 2005).

Furthermore, although 18^th and 19^th century liberal foundational texts defined freedom and equality as opposed to slavery, they generally criticised ancient slavery and omitted the actual slavery implemented by their regimes (Hardt and Negri, 2009). For example, although the Declaration of the Rights of Man of 1794 was supposedly universal, so it was invoked by Haiti’s revolutionary slaves, the slavery was re-imposed by the French State in 1803. In fact, slavery was completely integrated into modern capitalist production: “It is slavery which has given value to the colonies, it is the colonies which have created world trade, and world trade is the necessary condition of large-scale machine industry” (Marx in Hardt and Negri, 2009: p. 73). Hence, the historical process that consolidates and naturalises capitalist production and the liberal order had at the same time a colonial/imperial foundation (Lander, 2000).

Marx was critical of liberalism and capitalism, blaming them for being complementary in the process of labour commodification. Liberal legality and human rights declarations obscured the fact that behind the abstract category of a citizen entitled with universal rights, there were concrete human beings who were owners or workers (Rancière, 1992). Nonetheless, for Marx the expansion of capitalism would promote a dynamic process of development across the world. For him, England had to destroy the old Indian society, then implement the material foundations of capitalism and finally overcome it (Kiely, 2005). Thus, Marxist critique is also embedded in modernity principles. Marx proposed a universal formula to human oppression (socialism/communism) from the epistemic and social position of European proletarian, ignoring ontological and epistemological diversity, and the multiplicity of power relations (Grosfoguel, 2007). Furthermore, he celebrates modernity as progress and underestimates non-Western and non-modern critiques (Hardt and Negri, 2009). With the exception of the first generation of the Frankfurt School and some post-modern Marxists that criticised modernity within the West, Marxist tradition (structuralism, autonomism, etc.) has not questioned modernity’s paradigms either, as I show in the next sections.

31 The critique of modernity is also lacking in the debate on modern political liberalism.

According to John Rawls’ redefinition of liberal theory, the foundation of the democratic society is a hypothetical bargaining and consensus of free and equal individuals who are abstractly located in an original position. Rawls (2003) asserts that the consensus achieved from this position must fulfil three principles: 1) equality in the recognition of rights and freedoms (what he calls ‘primary goods’); 2) equality of opportunities for each individual to develop their own capacities; 3) the ‘difference principle’, which means that the state can exceptionally promote some social and economic inequalities in order to help the disadvantaged. This system would express what he calls ‘justice as fairness’, through a democratic regime that is legitimated by political debates or public reasoning. Rawls’ thought is deeply founded on classical liberalism, specifically, the social contract tradition (Rousseau, Locke) and Kantian ethics against utilitarianism (Sandel, 1998).

Rawls’ analysis has been criticised by different approaches. Nozick (1974) criticised the

‘difference principle’ because there would not be justification for state redistribution if property rights have been acquired legitimately. Sen (2009) criticised the transcendental framework focused on how a just society should be, opposing a comparative capabilities framework focused on real unjust situations. Sandel (1998, 2009) criticised the liberal pre-eminence of the rights over the common good, opposing ‘virtue ethics’ judgment on the content of the ends that rights promote. Communitarians also criticised the pre-eminence of rights, but emphasising the relations of identity and community (patriotism) as the foundations of a republican regime (Taylor, 2003).

However, rather than challenges, these approaches constitute complements or reforms to liberalism. For example, Rawls and Nozick share their opposition to utilitarianism and their ethical perspective is rooted in the social contract tradition (Sandel, 1998); their differences are between extreme liberalism (libertarianism) and welfare liberalism.

Similarly, Sen’s critique remains rooted in liberalism. He also does not accept a comprehensive view of the good life, and strongly relies on public reasoning to achieve justice (Deneulin, 2011). Regarding virtue ethics, although it emphasises common good over individual rights, it still complements liberal self-regulation, for example, in the case of fair trade or corporate social responsibility, liberalism provides the structure (consensus, freedom) and virtue ethics the substance (be responsible). Finally, communitarians do not see themselves as opposed to the liberal paradigm, but as a complement to maintain liberal democracy; the communitarian challenge therefore is not directed to replace liberal justice, but to improve it (Gutmann, 2003).

Habermas’ critique (1995) is also limited. He rightly criticised the Rawlsian consensus and other hypothetical assumptions as tools to justify the institutionalisation of society, however, by emphasising the communicative reason and action (Habermas, 1984) to reach real and comprehensive understandings for the whole democratic society; he shares with Rawls the pretention to maintain a social order through a transcendental formalism. Habermas’s communicative reason and action is a process directed to social actor’s interactions in the social order without challenging its underlying foundations, thus accepting and reinforcing its constitutive fundamentals (Hardt and Negri, 2009).

A most challenging critique of liberalism has its roots in Carl Schmitt. Schmitt’s decisionism (1932/2004) criticises liberal legality for being too formal, so it excludes

32 considerations of social and political context. Since all Law is situational Law (Schmitt, 1922/1985), a norm always requires the decision of an authority to determine the concrete application of the rule, and in this operation the decision-maker could decide even beyond the rule. Thus, judges hold an intrinsic power to rule beyond the Law when they have to decide hard cases, and the sovereign holds an intrinsic power to rule beyond the Law when he has to administer the society (in situations of political instability) through the state of exception (a legal prerogative of the government to suspend the rights ensured by the Law). This politics is the content of the political, which for Schmitt is the potential to establish the boundaries of the antagonism between political allies and enemies.

Then, for Schmitt liberal legality has two options: either it is completely and naively neutral so it does not define the boundaries of the political and in this way it might be overcome by antagonist and totalitarian projects (for example, communism); or it is only rhetorically neutral and substantially totalitarian because by defining the political it radically excludes any political antagonist. This view of the liberal order as based on dissent instead of consensus has generated different strains of critique such as Rancière’s (2006) ethics of dissent as the real basis of democracy, the theorists of radical democracy that see democratic processes as agonistic relations (Laclau and Mouffe, 2001), or Agamben’s view (1998) of the liberal order as container of totalitarian principles.

It could be said that Marx’s critique was directed primarily to unfold the dark side of capitalism (accumulation by dispossession and exploitation), and Schmitt unfolded the dark side of liberalism (exception and exclusion rooted in the very essence of liberalism). However, there is no a comprehensive critique of liberal legality and capitalism because it is usually missing a critique of modernity.

The usual account of modernity is that it was born in the 18^th century thanks to Enlightenment thinking (and its proposals of objective science and universal morality), the French revolution and the Reformation, which allowed Hegel to develop the main principle of modernity: ‘individuality’ as a model of self-relation (Habermas and Benhabid, 1981; Habermas, 1987). This principle was the basis of Western rationalism, which for Weber led to a rational process of disenchantment and disintegration of religious worldviews (Habermas, 1987). Since the 20^th century tragedies (wars, genocide, economic crisis and so forth) have affected modern aspirations, the usual theoretical account divides the debate between those who want to complete the modernity project, and those who deny it, the ‘anti-moderns’, or post-moderns.

For Habermas (1987) the anti-moderns question reason rooted in the principle of individuality because it has been used to hide different forms of exploitation, degradation and alienation on behalf of rationality. For example, Horkheimer and Adorno (1944) saw modernity inherently related to its opposite, anti-modernity (expressed in irrationalism, myth, domination, and barbarism), in a dialectic relation that would inevitably lead to its self-destruction (then, Hitler and Stalin’s regimes are not anomalous, but a symptom of the nature of modernity itself) (Habermas, 1987).

Nowadays, anti-modernity is usually called postmodernism, which has been criticised for being nihilist, relativist and functional to global capitalism (Jameson, 1991).

33 But the critique of modernity is a necessary step to critically analyse liberalism and capitalism and how they relate to indigenous peoples. The ontological and epistemological foundation of this project (rationalism and universalism), however, can be more fruitfully examined from the perspective of those who have been dispossessed, than from postmodern intellectuals. The decolonial critique is relevant in this task.

2.3. Coloniality, indigenous peoples and trans-modern