In this chapter, I argue that during the period of historical colonialism, colonial law consisted of two bodies of law separated by an abyssal line. When speaking of colonial law, one has to have in mind the law issued or accepted by the colonial power to apply in the colonies and govern their relations with the metropolitan centre. In this sense, colonial law consisted of two bodies of law. The first was the set of legislation (court decisions and administrative measures) emanating from the metropolitan government or colonial administration, to be applied in the colonies and in their relations with the metropolitan government. The second referred to laws and regulations that specifically applied to those sectors of native populations that were not “civilised” (the vast majority) or, in other words, those that had not been assimilated into European values, culture, manners and tastes. Both offered striking contrasts with the body of law that applied on metropolitan soil. The crucial topics that separated metropolitan and colonial law: a racial property regime; labour as a branch of criminal law; extreme punitive justice; formal or informal systems of apartheid grounded in settler or white supremacy; suppression or instrumental manipulative recognition of indigenous law. These topics show that metropolitan and colonial legality were (are) the two sides of modern abyssal law.

In this and the following chapters, I analyse several attempts to interrupt the abyssal nature of modern law emerging from my previous research on sociology of law. I try to identify the reasons why most of such attempts failed or are about to fail. This chapter analyses the phenomenon of popular justice in Portugal during the revolutionary crisis that became known as the 25 April Revolution or Carnation Revolution. During the course of the revolutionary crisis (April 1974-November 1975) many popular movements emerged. They differed in terms of social objectives, strategy and tactics, organisational strength, degree of control by formal political organisations, and other factors, but shared the same class composition: the urban or rural working class (and occasionally the peasantry) allied themselves with radicalised sectors of the urban petty bourgeoisie. As these movements emerged during a revolutionary crisis, all of them questioned the legitimacy of the capitalist state. Popular justice in Portugal after 25 April 1974 involved a wide range of actions varying in political scope, the degree and type of popular mobilisation and internal organisation, and the level of confrontation with official justice. As a descriptive strategy, the range of cases and situations may be grouped into two categories: the struggle for the redefinition of criminal justice, and the struggle for the right to decent housing. Within each category, I begin with a brief narrative of cases that relate more or less remotely to the concept of popular justice and then concentrate my analysis on the most representative examples. Were there failed attempts at post-abyssal legality?

This chapter focusses on legal pluralism and restorative justice in Colombia since 2016. It is a period defined by the agreement reached between the Colombian Government and the most important guerrilla group (FARC), namely the La Habana Agreements which brought to an end a period of political violence that had lasted for more than fifty years. The law of ethnic peoples is one of the forms of collective organisation through which subalternized communities have sought to strengthen their identities, languages, territories, legal systems, and authorities in order to resist old and new colonialisms. The intercultural framework for transitional justice seeks to formulate a concept of justice that responds to the need to heal the wounds associated with past wrongdoings and counteract contemporary forms of injustice directed against various ethnically differentiated victims. Intercultural dialogue must be based on the capacity to listen in such a way as to understand and grant full credibility to the ways in which the silenced voices are intended to be heard. The role of transitional justice is a catalyst in the search for strategies to combat systematic human rights abuses and violations, due to the ravages of historical and existing colonialism. The limitations of JEP (Special Jurisdiction for Peace) may be a factor that prevents it from fully complying with its historical mission, especially if this is compounded by a lack of political will, both on the part of the government in power and the more conservative and extremist sectors of Colombian society.

In the following chapters, I analyse several attempts to interrupt the abyssal nature of the modern state emerging from my previous research on sociology of law. I try to identify the reasons why most of such attempts failed. In this chapter, I analyse some of the most salient features of the state and the legal system in Mozambique proposing the concept of heterogeneous state to highlight the breakdown of the modern equation between the unity of the state and the unity of its legal and administrative operation. The centrality of legal pluralism is analysed in light of an empirical research focused on community courts and traditional authorities. I use the concept of legal hybridisation with the purpose of showing the porosity of the boundaries of the different legal orders and cultures in Mozambique and the deep cross-fertilisations or cross-contaminations among them. Special attention is given to the multicultural plurality resulting from the interaction between modern law and traditional law, the latter conceived of as an alternative modernity.

The most disastrous blunder of the age was its refusal to acknowledge what most subalternised cultures and people took for granted: nature does not belong to us; we belong to nature. The reckless destruction of nature ended up threatening the survival of the human species, in the form of recurrent pandemics, extreme weather events, massive numbers of environment refugees, the disappearance of small island states, and environment-related chronic diseases. I argue in this chapter that all the main mechanisms of exclusion and discrimination at work in modern societies – whether class, race or gender – are traceable to the root dualisms between humanity and nature, and between mind/soul and body. The ways in which modern society deals with inferiority are modelled on the ways it deals with nature. If abyssal exclusion means domination by appropriation/violence, nature – including land, rivers and forests as well as people and ways of being and living whose humanity was negated precisely for being part of nature – has been the favoured target of this domination in Western modernity since the sixteenth century. I start by examining old and new contestations of Cartesian dualism, then I illustrate how this contestation has entered the field of law, what it entails and the prospects for the future. The rights of nature are a promising real legal utopia.

We should think of our age as a time for a wager and bet on the possibility of a civilisatory alternative. To maximise our chances, an alternative thinking of alternatives is required: the epistemologies of the South. In this chapter, I discuss what such an epistemological move entails for a socio-legal theory of law presenting a blueprint for a new possible way of theorising law in society from the perspective of the epistemologies of the South. Under modern domination, two contradictory legal worlds were born: metropolitan law and colonial law. The most remarkable characteristic of Western-centric domination is that this contradiction, however radical, was (and is) invisible. The specific operations of this dualistic liberal legal order made these two systems incommensurable legal realities and, as such, incapable of being contradictory. After historical colonialism ended, abyssal and non-abyssal forms of social exclusion became different sociabilities, structured by different types and styles of social relations and social interaction. The legal inexistence of abyssal exclusion became both the cause and the effect of the massive impunity afforded to exclusionary behaviour which targeted ontologically degraded populations and robbed them of their basic human dignity. The epistemologies of the South conceive of modern science, including legal science, anthropology, and the sociology of law, as important but incomplete bodies of knowledge whose relevance depends on their contribution to denouncing and eliminating the abyssal lines of exclusion and legal non-being. This contribution in turn depends on linking scientific knowledge with other non-scientific legal and non-legal knowledges, which will often involve intercultural translation. Ecologies of legal knowledges will emerge from this linking and, with them, post-abyssal legal thinking.

At the end of the first decade of the millennium, Bolivia and Ecuador were the two Latin American countries that had undergone the deepest constitutional transformations during the course of political mobilisations carried out by indigenous movements. Their constitutions contain the embryos of a paradigmatic transformation of modern law and the state, putting an end to the centuries-old abyssal line haunting their social, cultural and political life. In this chapter, I focus on the legal judicial systems as they navigated these often turbulent processes, in which recognition of the existence and legitimacy of indigenous justice acquired a new political significance. It was not just a matter of recognition of the country’s cultural diversity or an expedient to allow remote local communities to resolve minor conflicts within their own sphere, thus guaranteeing the social peace which the state could not safeguard under any circumstances due to a lack of material and human resources. It was rather about conceiving of indigenous justice as an important part of a political project with a decolonising and anti-capitalist mission, a second political independence that might finally break with the Eurocentric abyssal line that has conditioned development processes in the last two hundred years. I analyse the vicissitudes of this process showing the limitations of the envisaged interruption of the modern colonial state and of modern Eurocentric law.

In this chapter, I focus on a specific attempt to replace the national feature of the “nation state” by indigenous people’s movements in some Latin American countries in the first decade of the twenty-first century. When indigenous movements, both in the Latin American subcontinent and in the world at large, fly the flag of the refoundation of the state they target the feature of the modern state form that made them invisible and caused so much destruction and unjust suffering for so long, namely the supposedly national character of the nation state derived from the capitalist, colonialist state. Their experience is painful evidence of the difficult task of refounding the state. Due to its long history, the modern state form is much more than an institutional conglomerate. It is a cultural artefact. Rather than a political struggle in the strict sense, the struggle for the refoundation of the state is a social, economic, and cultural struggle, a struggle for symbols, mentalities, habitus, and subjectivities. In this chapter, I describe the political processes in Bolivia and Ecuador, the two countries in which efforts to refound the state were most credible in the first decade of the millennium highlighting the main features of the projected refounded state as laid out in the new constitutions.

As mentioned in Chapter 1, in his Prison Notebooks Antonio Gramsci introduced the concept of the interregnum in contemporary politics (1972). Whereas in the Middle Ages the term referred to the period between the death or abdication of a king and the crowning of the next one, for Gramsci the interregnum was related to the period of transition between the old Italy and the new Italy. He famously described it thus: ‘The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear’ (1972: 276). We definitely live in an interregnum.

In this and the following chapters I analyse the history of abyssal exclusions brought about by modern state law. I define lawfare as any performance in the name of law (a declaration, norm, sentence, official action or omission) premised on the extreme strangeness of the addressee or target, either because the latter is not fully human (the stranger as a subhuman being) or because its actions must be sanctioned without the normative constraints of the rule of law (the stranger as an internal or external enemy). The long journey of lawfare is the long journey of capitalism, colonialism and patriarchy. It has undergone multiple metamorphoses and reincarnations since the sixteenth century. From colonial law to imperial law, from the penal law of the enemy to the criminalisation of protest, and from the war on corruption to the war on migration, the abyssal exclusion of targeted social groups has been carried out by lawfare. In every instance, modern domination has found ways of separating humanity from subhumanity, friend from enemy, and non-abyssal social exclusion from abyssal exclusion. There is no reason to believe that new metamorphoses will not appear. The abyssal line is the most resilient and most fundamental structure of Western domination. Only successful struggles against capitalism, colonialism and patriarchy will bring about the progressive dislocation of the abyssal line through sustained interruptions of the institutions upon which Western domination reproduces itself, namely the state and the law.

This chapter analyses a different type of the popular justice with reference to Cape Verde Islands after their independence from Portuguese colonialism (1975). It is a form of institutionalised justice, officially recognised as such, incorporated in one way or another into the general justice administration system (which is sometimes broadly described as popular justice in light of its local normative, institutional, cultural, and discursive nature, accessibility and deprofessionalised personnel. The Cape Verde local or people’s courts were founded as an extension of indigenous forms of justice administration created as alternatives to colonial law and justice in the liberated zones in Guinea‑Bissau. They were initially adopted informally, then made official in 1979. Through the local courts, the state aimed to encourage popular participation and create spaces in which community culture could flourish, while the values and actions which they stimulated were defined in terms of political criteria directed towards achieving a higher purpose, namely building socialism. I begin with a close-up of a local court at work on the island of São Vicente, before analysing in detail the interfaces and contradictions between the political and judicial legitimacy of the people’s courts, ending with the conclusions of the research and a postscript written forty years later.