Structural Violence and Religious Freedom: Towards a Legal Principle of Structural Justice in the Chilean Experience

Abstract

Recent Chilean jurisprudence on Indigenous religious freedom has revealed a profound dissonance between the legal categories applied by the courts and the spiritual conceptions of Indigenous peoples. This gap between formal recognition and the effective protection of sacred sites generates a form of structural violence, understood as the institutional reproduction of inequality under the guise of neutrality. This study proposes to reformulate the notion of structural violence as an operative legal principle capable of activating heightened judicial scrutiny. Through a qualitative approach, it develops a doctrinal and jurisprudential analysis aimed at identifying normative patterns of exclusion and assessing the hermeneutic, normative, and diagnostic functions of the proposed principle. The results show that Chilean law, by translating spiritual practices into liberal categories of property or procedure, neutralizes their religious content and perpetuates relations of subordination. The study concludes that incorporating the principle prohibiting structural violence enables the reinterpretation of legal norms and the correction of historical asymmetries, orienting the law toward a form of structural justice sensitive to the ontological, cultural, and spiritual plurality of Indigenous peoples.

1. Introduction

In Chile, structural violence against Indigenous peoples manifests in various forms: from the violation of property and environmental rights to the lack of protection for their spirituality and the absence of procedures that respond to their specific cultural needs. As noted in Baghino (forthcoming b), the rigid application of the Western concept of religion in judicial proceedings constitutes a form of structural violence as such a model fails to capture the integral dimension of Indigenous religious rights and their profound interrelation with the territory.

Within the field of religious and spiritual freedom, structural violence reveals its deepest expression: modern law, by translating sacred experience into formal categories such as ‘property’ or ‘public order’, tends to neutralize the spiritual meaning of Indigenous territories and practices. This dissonance between legal categories and spiritual conceptions provides a paradigmatic ground for observing how law reproduces exclusion under the guise of neutrality. As Glenn (2009) argues, “speaking of legal traditions directs our attention to normative information, to the word and not to reified concepts of legal systems or legal cultures, both of which are said to exist without regard to their normative content”.

Within the social sciences field, Galtung (1969, 1990) defined structural violence as that which is embedded in institutions and manifests in an unequal distribution of power and opportunities. In the legal field, however, the concept has been scarcely developed. While part of the doctrine assumes that formal equality and procedural guarantees are sufficient to correct imbalances, another current stresses the need for a substantive approach that incorporates the cultural, spiritual, and territorial dimensions of Indigenous peoples (Alexy 1993; Zagrebelsky 1995; Pinto 1997).

Recent Chilean jurisprudence clearly reflects this tension: courts acknowledge the existence of religious ceremonies or practices but deny them effective protection, reasoning that rivers, hills, or wetlands do not constitute ‘places of worship’ in the legal sense.

The hypotheses of this study are twofold:

• When judicial decisions apply formal categories (property, significant impact, typified place of worship) to Indigenous spiritual practices, they tend to reproduce structural exclusion under the appearance of neutrality.
• The formulation of an operative legal principle prohibiting structural violence—understood as both a hermeneutical and normative reason (pro homine, pro dignitate)—enables the activation of heightened judicial scrutiny and justifies remedies that prevent the reproduction of exclusionary patterns.

This study seeks to move beyond diagnosis and to propose a legal principle prohibiting structural violence, conceived as a theoretical and normative tool capable of guiding judicial interpretation in contexts marked by structural inequality and epistemic exclusion. This principle is formulated as a legal obligation of the State and the judiciary not to reproduce, through rules or interpretations, the structural effects of exclusion that affect historically marginalized groups. In its practical dimension, the principle requires an intercultural hermeneutical exercise that transcends the monistic and liberal conception of religion, recognizing Indigenous spirituality as an essential component of dignity and substantive equality.

The article combines the three functions of the concept of structural violence—diagnostic, normative, and hermeneutical—to show how this framework can offer interpretive tools capable of correcting the epistemic asymmetries that persist in Chilean jurisprudence. The article is structured as follows: Section 2 reconstructs the framework on religion and Indigenous spirituality in contrast with the Western concept of religion; Section 3 defines structural violence as a legal concept and develops its diagnostic, normative, and hermeneutical functions; Section 4 delineates the concept in relation to adjacent notions such as poverty, discrimination, harm, and vulnerability; Section 5 establishes the normative foundations of the principle—substantive equality, autonomy, and spiritual freedom—as well as its principles of balancing, defeasibility, and prototypical effects; Section 6 proposes the operative concepts and a heightened scrutiny test with verifiable indicators; finally, Section 7 presents the conclusions and remedial criteria addressed to the judiciary.

Redefining structural violence as an operative legal concept (García Máynez 1959; Dworkin 1988; Ferrajoli 2007; Guastini 2018) allows for the reproducible identification of exclusionary patterns and the justification of interpretive or structural remedies—such as defeasibility ad casum, conforming reinterpretation, or reinforced reasoning—that ensure the effective protection of Indigenous religious and spiritual rights. In this way, structural violence becomes a transformative legal principle that reorients the function of law toward a form of structural justice sensitive to the ontological and spiritual plurality of Indigenous peoples.

2. Indigenous Religion and the Western Concept of Religion

According to Dworkin, religion should be understood as an interpretive concept, since there is no single or universal definition of what religion is. Rather, there exist multiple interpretations that reflect individual convictions and diverse worldviews (Dworkin 2013). From this perspective, any attempt to establish a rigid legal concept of religion is problematic, as it risks arbitrarily including or excluding certain practices or beliefs (Salinas 2001). Religious experiences—particularly those of Indigenous Peoples—should therefore be regarded as fully legitimate and deserving of the same legal protection granted to other forms of faith, in accordance with international human rights standards (Baghino, forthcoming b). Researchers from a wide range of disciplines acknowledge that even the very definition of ‘religion’ remains a matter of disagreement. Among them are anthropologists such as Wax (1984), Poole (1986), Saler (1993), and Boyer (1994); scholars of religion such as Preus (1987), Penner (1986), Lawson and McCauley (1993), and Masuzawa (1993); sociologists such as Stark and Bainbridge (1987); and philosophers such as.

As Yajaira Bermeo Peñafiel (2024) observes, religion can also be understood through the practices that constitute it. These practices shape different forms of commitment and devotion toward a divine figure, a prophet, or sacred texts. Although they evolve over time, some retain a particularly rigorous character compared to others.

Within Indigenous worldviews, land and spirituality are inseparably intertwined. The land is not conceived merely as a physical or economic resource but as a living mother who embodies origin, identity, and destiny. It represents the foundation of existence, the condition for sustenance, and the structural core of community life. Because of this sacred interdependence, any harm inflicted upon the land directly threatens the spiritual integrity of the people themselves.

In contrast to the dominant Western conception, which traditionally views land as a material asset devoid of transcendence, Indigenous Peoples attribute to it profound spiritual value. The prevailing legal and cultural frameworks, however, have often confined the notion of religion to organized worship conducted in human-made sanctuaries—churches, mosques, or synagogues—thereby rendering Indigenous spirituality largely invisible. As Glenn (2009) has shown, the Western conception of religion is the product of a specific historical trajectory in which Christianity—particularly in its Catholic and Protestant variants—gradually separated the spiritual sphere from the legal one, producing normative categories that privilege written revelation, institutional places of worship, and centralized forms of religious authority. This historical development has generated a normative model that is structurally incapable of recognizing spiritualities grounded in territory, oral transmission, and cosmological continuity, such as those of Indigenous Peoples. For many Indigenous communities, the sacred is embedded in nature itself: in rivers, caves, lagoons, mountains, cemeteries, or rock formations1, where ceremonies take place and offerings—such as crosses, carvings, or ceremonial staffs—are made (Reguart Segarra 2020; Barabas 2002). But as Eliade (1959) observes, “the modern occidental experiences a certain uneasiness before many manifestations of the sacred”. For many human beings, it is difficult to acknowledge that the sacred may manifest in something as ordinary as a stone or a tree. Yet the point is not the worship of the object itself. A sacred tree or a sacred stone is not revered for its material form, but because it serves as a manifestation of the sacred—because it reveals something that goes beyond its physical appearance, the ganz Andere (the ‘wholly other’). A stone regarded as sacred remains, on the surface, identical to any other stone; from a purely profane perspective, nothing sets it apart. However, for those to whom the sacred discloses itself through that stone, its ordinary reality becomes transformed, opening onto a dimension that exceeds the natural world. For individuals who have a religious experience, all of nature holds this potential: the entire cosmos can present itself as permeated with sacred meaning, becoming a vast network of possible hierophanies (Eliade 1959). A site becomes sacred not merely by its physical location but through a shared cosmology that interlinks deities, ancestral spirits, and the community. These places hold ecological, social, symbolic, and territorial significance, serving as essential reference points for identity and cohesion. Within these cosmologies, nature possesses intrinsic worth and is revered as the embodiment of the divine and the dwelling of ancestors. Living harmoniously with the natural world thus assumes a sacred dimension, expressed through rituals of gratitude, purification, and renewal. Despite the diversity of Indigenous belief systems, there is a broad consensus that ecosystems themselves embody the sacred (Reguart Segarra 2020).

In the contemporary context, Indigenous claims increasingly emphasize the right to live in peace and spiritual harmony within their ancestral territories, according to their traditional worldviews and practices. This profound connection with the land spans social, cultural, economic, political, and—most importantly—spiritual dimensions. Unlike dominant religions that locate the sacred within constructed temples, Indigenous spirituality recognizes sacredness in the natural environment itself—hills, lagoons, waterfalls, or wells. As Tatay and Merino (2023) explain, a sacred site is not limited to geography but constitutes an entire normative and belief system that regulates human conduct toward the non-material realm, where ancestral spirits and higher entities dwell.

These places are perceived as possessing a unique energy, where the sacred manifests with particular intensity. Eliade (1959) describes the sacred as a reality distinct from and opposed to the profane; accordingly, people living near water tend to associate holiness with that element, while those dwelling among mountains find it in peaks and volcanoes. From this understanding arises a key conclusion: the concept of religion must extend beyond the so-called ‘major world religions’ to encompass all belief systems that perform comparable moral and spiritual functions (Martínez Cobo 1983). Every form of religiosity that seeks the moral elevation of humanity and promotes understanding and fraternity merits recognition and legal protection. Indigenous spiritual traditions, therefore, hold the same legitimacy as other expressions of faith and are entitled to special protection under international law (Cloud 2024). As Glenn (2009) observes, “resistance to tradition can never bring about its elimination”, and the most profound attempts to challenge an existing normative order inevitably generate “the birth of a new tradition” that reorients prior commitments. This insight is crucial for understanding the structural nature of legal exclusion: Western law does not simply misinterpret Indigenous spirituality, but reproduces inherited normative frameworks that shape what can be recognized as ‘religion’.

3. The Notion of Structural Violence as a Legal Concept: Diagnostic, Normative, and Hermeneutical Functions

The notion of structural violence, of sociological origin, remains largely foreign to legal disciplines and lacks criteria applicable to the analysis of the formal sources of law (Guastini 2018). According to Galtung (1969), structural violence is “violence that is built into the structure and manifests itself as unequal power and consequently as unequal life chances.” In contemporary law, structural violence is a legally relevant phenomenon in which the structures and norms of the legal system, through their concrete operation, reproduce systemic inequalities and asymmetric power relations. It is not an individual fault or a merely sociological description of injustice, but rather a normative and interpretive principle capable of revealing and correcting the mechanisms of exclusion inscribed within law itself (Baghino, forthcoming a).

Unlike direct violence—visible and punishable—which can be explained through the subject–object–action scheme and manifests in physical aggression, crimes, or armed conflict, cultural violence operates as a legitimizing layer that presents direct and structural forms of violence as ‘natural’ or ‘inevitable’. It consists of the set of values, beliefs, and ideologies that justify or minimize the violence present in a society, making it appear acceptable or unavoidable. Galtung (1990) defines cultural violence as “those aspects of culture—the symbolic sphere of our existence, exemplified by religion and ideology, language and art, empirical science and formal science (logic, mathematics)—that can be used to justify or legitimize direct or structural violence,” that is, the domains in which meaning is produced.

For instance, when legal discourse defines ‘religion’ exclusively through a Western lens—centered on institutionalized worship, sacred texts, or organized clergy—it engages in a form of cultural violence, as it excludes Indigenous spiritual practices that are inseparable from territory, communal rituals, and ancestral knowledge. Such a restrictive definition delegitimizes Indigenous cosmologies and renders their sacred sites invisible within the legal framework, thereby legitimizing decisions that allow the establishment of extractive or infrastructure projects on lands regarded as sacred by these communities.

In this context, structural violence manifests as a systematic and invisible form of exclusion, deeply rooted in the legal categories that define what is considered just and protected. It is embedded within the social, political, and economic systems that govern societies and does not require direct manifestations of violence to produce harmful effects on the survival, well-being, or freedom of certain groups. A complementary insight emerges from Friedrich Glasl’s (2019) systemic theory of conflict, which further clarifies why structural violence becomes self-perpetuating within legal and institutional frameworks. According to Glasl (2019), conflict is not a mere aggregation of individual behaviors but an emergent property of a social system, whose dynamics evolve according to patterns of circular causality rather than linear cause–effect relations.

This means that exclusionary structures—once set in motion—tend to reproduce themselves through feedback loops that shape perceptions, interactions, and institutional responses. When the available resources and knowledge would allow for a dignified life for the entire population, yet their unequal distribution prevents certain sectors—such as Indigenous peoples—from accessing them, structural violence becomes visible in the form of deprivation, marginalization, and the denial of full legal recognition.

Glasl (2019) also emphasizes that, beyond a certain threshold, it is no longer individuals who have a conflict, but the conflict that has them, progressively limiting the range of actions and interpretations available to the parties.

This insight resonates with Galtung’s idea of cultural violence as a symbolic layer that naturalizes and legitimizes structural harm: both perspectives reveal how systems of meaning and institutional arrangements can acquire autonomy from the agents who inhabit them, making exclusion appear inevitable, reasonable, or legally neutral.

In law, the notion of structural violence can legitimately operate across at least three levels:

(1) Diagnostic function. As a diagnostic function, the concept allows for the identification of abstract patterns that traverse multiple areas of law—from territorial property and religious freedoms to socioeconomic vulnerability and education. This function addresses the following question: “Where and how do legal structures reproduce harm?” Jurisprudential genealogy suggests common criteria for detecting such patterns: the judicial definition of entitlement, the substantive evaluation of equality, and the relationship between “public interest” and Indigenous peoples’ rights. This conceptual mapping reveals how certain judicial decisions, even when formally compliant with the law, end up reproducing inherited hierarchies. This point is developed further below.

(2) Normative or principled function. This function poses the following question: “What standard should guide the interpretation of legal norms to prevent systemic harm?” Structural violence here operates as an overriding principle: it allows for questioning the application of otherwise valid legal rules (Gutiérrez 2009; Guastini 1995) that, in their effect, produce regressive consequences for Indigenous peoples. To function as an overriding reason, this principle requires clear and transparent argumentation: it must demonstrate a diagnosis of the exclusionary structure, the identification of a violation of substantive equality or discrimination, and the justification that the proposed remedy is both necessary and proportionate in light of available alternatives. This architecture ensures judicial control over arbitrariness (Turizo et al. 2014).

(3) Hermeneutical function. This function addresses the following question: “How should ambiguous legal norms be interpreted in contexts of historical marginalization?” Here, seemingly descriptive categories such as ‘freedom’, ‘equality’, or ‘property’ are not neutral when applied to vulnerable communities, culturally or territorially specific groups, or social minorities. The hermeneutical function guides the reinterpretation of these categories toward readings that do not reproduce historical inequalities, incorporating cultural and social context (Mantilla Espinosa 2009; Gende 2019).

This conceptual delimitation becomes evident in situations where the use of the term ‘public interest’ conceals forms of cultural violence that ultimately legitimize the exclusion of certain groups. For this reason, the legal concept of structural violence becomes a necessary condition to ensure the effective protection of those who, as minorities, remain subordinated within that framework of public interest.

This threefold functionality is confirmed when examining concrete judicial cases in which the tension between religious freedom, property rights, and Indigenous consultation reveals the persistence of exclusionary structures in Chilean law.

The Ngen Mapu Kintuante2 case illustrates how the diagnostic function of the notion of structural violence enables the identification of patterns of legal subordination that operate even when judicial decisions formally comply with the law. In the first-instance judgment, the Court of Appeals recognized the violation of the Mapuche-Williche community’s freedom of worship due to the felling of trees in a ceremonial site, thereby making visible the spiritual dimension of the territory. However, the Supreme Court overturned this decision, privileging property rights over the protection of the sacred site and thereby reproducing a structural hierarchy that subordinates the Indigenous worldview to the liberal paradigm of private property.

Similarly, the Comunidad Atacameña Yalquincha Lickan Ichai Paatcha y Kamac Mayu v. Environmental Evaluation Commission of Antofagasta3 demonstrates how the normative-principled function of the concept of structural violence allows for questioning the validity of administrative acts that, although formally compliant with the law, generate regressive consequences for Indigenous communities. Both the protection action and the appellate ruling recognized the omission of prior consultation and the impact on the ceremonial territory; nevertheless, the Supreme Court once again revoked protection, privileging a procedural and technical approach to environmental law that neutralized the substantive content of collective rights.

Finally, the hermeneutical function of the notion of structural violence guides the reinterpretation of legal categories such as ‘property’, ‘public interest’, or ‘direct impact’, so as to integrate the cultural, spiritual, and territorial dimensions of Indigenous peoples. The two cases demonstrate that, in the absence of such a contextual reading, law retains its structurally violent character: it formally recognizes fundamental rights but neutralizes them in practice, legitimizing exclusion under the discourse of normative neutrality.

These examples confirm that structural violence operates systematically and that the three functions of the concept—diagnostic, normative-principled, and hermeneutical—are necessary to identify, correct, and interpret these practices legally, beyond specific national contexts.

4. Conceptual Delimitation of Structural Violence

This section establishes analytical criteria for distinguishing structural violence from related concepts such as poverty, discrimination, harm, and vulnerability (Fineman 2008), clarifying its collective, structural, and enduring nature (Coady 1995). Taken together, these distinctions provide the conceptual foundation for moving from a sociological diagnosis to a legal framework capable of guiding the identification, interpretation, and eventual correction of normative practices that perpetuate exclusion and inequality, ensuring that judicial and administrative decisions remain sensitive to historically unequal social structures.

It is necessary to delimit structural violence from adjacent concepts to avoid conceptual confusion and to clarify its analytical usefulness:

• In relation to poverty: Structural violence avoids materialist reductionism. It is not exhausted in economic deprivation but rather in normative arrangements that render collective subjects and their cultural practices invisible (La Parra-Casado and Tortosa Blasco 2003). Its threshold of activation lies in the susceptibility to specific harm, rather than the proof of direct financial damage. The analysis thus prioritizes cultural differentiation and historically disadvantaged positions.
• In relation to classical discrimination: Structural violence incorporates the structural dimension that exceeds isolated comparative treatments. A rule may be facially neutral yet produce regressive effects on structurally marginalized groups, thereby justifying the application of the principle as a proportional overriding reason. This approach harmonizes substantive equality, non-discrimination, and the State’s positive duties of institutional adaptation. Unlike discrimination, structural violence does not focus on isolated norms or acts but on broader configurations of legal structures that systematically disadvantage certain groups (Aguilar Cavallo 2024).
• In relation to classical harm: Harm is generally conceived as individual, visible, and with an identifiable causal connection—susceptible to proof and compensation (Alle 2020). Structural violence, by contrast, is diffuse and collective: it affects entire communities or historically marginalized sectors, manifests invisibly through institutions, social practices, and legal norms, and produces cumulative and persistent effects over time. While classical harm points to a “specific, concrete effect susceptible to economic valuation” (Díez-Picazo 1999), structural violence operates as a constant backdrop of inequality and exclusion.
• In relation to vulnerability: Unlike vulnerability, which describes the condition of “a group of people who, as a consequence of their living conditions, are in a situation of greater susceptibility to harm” (Feito 2007), structural violence does not merely identify subjects at risk but examines how normative and structural arrangements generate or reproduce that very condition of vulnerability. Whereas vulnerability identifies who may be affected by social, economic, or legal risks (Pelling 2003), structural violence explains why and how those conditions persist over time, embedded within institutions and legal norms. This perspective enables a shift from a descriptive understanding of social weakness to a legal-analytical critique of the mechanisms that perpetuate the subordination of historically marginalized groups, thereby connecting empirical evidence with normative obligations of transformation.

5. Normative Foundations of the Principle of Structural Violence: Substantive Equality, Autonomy, and Spiritual Freedom

This section focuses on translating the conceptual diagnosis developed in the previous section into an operative legal framework. Its main purpose is to show how structural violence can become a normative, interpretive, and proactive legal principle guided by substantive equality and non-discrimination. Through this section, it becomes evident how legal actors can review, reinterpret, or set aside rules whose literal application perpetuates exclusion, establishing criteria of balancing, proportionality, and reasonableness that ensure judicial decisions are fair and sensitive to historically unequal social structures.

The section also develops the normative foundations that link the notion of structural violence with the State’s positive obligations, emphasizing its capacity to translate structural patterns of exclusion into concrete legal duties. It outlines criteria for interpreting legal norms through pro homine or pro dignitate approaches, taking into account the importance of collective rights-holdership, substantive equality, and the correction of historical inequalities.

Taken together, this section demonstrates how structural violence can function as both an analytical and operative legal tool, ensuring that the application of law does not reproduce patterns of subordination but instead promotes the effective protection of the material, cultural, and spiritual rights of historically marginalized groups.

5.1. Autonomy and Substantive Equality

The normative anchoring of the principle of structural violence lies in its affinity with substantive equality and autonomy, as it enables the review of legal norms whose apparent neutrality conceals exclusion. This normative translation connects the diagnosis of structural patterns with the State’s positive duties to remove non-evident obstacles to the realization of an autonomous life. In this sense, the notion of structural violence articulates the protection of the material, cultural, and spiritual rights of historically marginalized communities—including the right to religious freedom and the recognition of territory as a spiritual space—reinforced by international standards requiring respect for cultural and spiritual values.

From the perspective of the hermeneutical function of principles, authors such as Dworkin (1988) and Alexy (1993) argue that principles not only guide legislation but also judicial interpretation. Applied to the principle prohibiting structural violence, this means that judges may invoke it as a pro homine or pro dignitate argument, thereby limiting the literal application of norms whose interpretation would otherwise consolidate exclusion.

Indeed, as Jori and Pintore (2014) explain, principles express the values that must be protected—such as freedom, equality and dignity—or the goals that the legal system is required to pursue, such as the protection of labor or health.

Equality is not violated only when disadvantages or limitations are imposed on a particular group, but also when privileges are granted to another ‘competitive’ group or one of a similar nature, which we may conventionally call the majority (Prieto Sanchís 1994). Authors such as Rawls (2012) and Tocqueville (2000), among others, who initiated the analysis of the essential elements required to ensure that democratic regimes truly guarantee equal opportunities, have argued that democracy exists insofar as it maintains its fundamental connection with freedom and equality.

The canonical genealogy of substantive equality demands attention to normative structures rather than merely individual treatment. In systems such as that of the United States, norms like the Equal Protection Clause of the Fourteenth Amendment, the Civil Rights Act of 1964 (Titles VI and VII), the Voting Rights Act of 1965, and, in relation to Indigenous peoples, the Indian Civil Rights Act of 1968, have served as the legal foundation for the judiciary’s evolution from a formal conception of equality toward a substantive understanding of it. Historical and contemporary cases such as Johnson v. M’Intosh (1823), Brown v. Board of Education (1954) demonstrate that the judicial definition of equality or property organizes hierarchies that can either perpetuate or dismantle historical inequalities. In Johnson v. M’Intosh (1823), the U.S. Supreme Court held that “the Indian inhabitants are to be considered merely as occupants…,” reducing Indigenous sovereignty to a right of occupancy subordinated to the State’s asserted dominion. A century later, in Brown v. Board of Education (1954), the same Court acknowledged that formal equality (“separate but equal”) could itself become an instrument of systemic exclusion, striking down school segregation as unconstitutional.

From this perspective, the relevant criterion is not the subject matter of the litigation—be it territory, education, or other domains—but whether the literal application of the norm reproduces a structural pattern of exclusion.

Comparative constitutional traditions teach the importance of considering elements such as the recognition and ownership of collective rights, the substantive assessment of equality, the corrective capacity of the norm vis-à-vis historical inequalities, and its relationship to the public interest. These criteria allow structural violence to function as both a normative and practical foundation for reinterpreting, limiting, or even suspending the application of legal norms that would otherwise perpetuate the subordination of historically marginalized groups.

Constitutions such as that of South Africa (art. 9), together with the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), the 1991 Colombian Constitution (arts. 13, 70, and 72, concerning substantive equality and the protection of cultural diversity), and the Canadian Charter of Rights and Freedoms (ss. 15 and 35), explicitly articulate obligations of historical redress and the recognition of collective rights. These normative frameworks—beyond the specific domain at stake, whether territory, education, or other fields—make it possible to assess whether the literal application of a legal rule reproduces a structural pattern of exclusion.

Only societies, therefore, acquire this character insofar as they are reflective and aware of the inequalities that hinder the full development and access to rights of all individuals, especially those who are not part of the ‘dominant elite’ (Mosca 1923). Acknowledging the mere existence of inequality thus implies recognizing a differentiated access to social rights. As Piketty (2023) has argued, inequalities are linked to diverse socioeconomic, political, cultural, civilizational, or religious trajectories, as they depend on human history and cultures (Arias 2025).

Structural violence is directly linked to autonomy when it is recognized that certain normative arrangements, though formally valid, produce systematic exclusion and limit the capacity of historically marginalized groups to lead self-determined lives. “Autonomy is therefore the principle of the dignity of human nature and of every other rational nature”4 (Kant 2019). When we speak of autonomy as a principle, in contrast to all heteronomous principles, we refer to the Kantian idea that the will is independent from impulses, inclinations, and desires and able to determine itself in accordance with a law that it gives to itself through reason. In this view, every rational being can be regarded as a legislator within a kingdom of ends, understood as an organized community of rational individuals guided by shared laws. The individual, acknowledged as an end in themselves, thereby contributes to the construction of universal practical reason. The human being, insofar as they are both natural and rational, possesses a form of autonomy that leads them—through reason—to establish norms aimed at fulfilling their rational nature, and therefore to act not according to instinct but according to rational principles (Tarantino 2018).

According to Ferrajoli (2019), autonomy—consistent with the etymology of the term—consists of the freedom to set rules for oneself, a power whose exercise establishes, modifies, or extinguishes legal relationships, producing effects not only within one’s own legal sphere but also within that of others. Autonomy is characterized, in addition to the freedom of its exercise, primarily by its potestative dimension: it constitutes a genuine ‘normative power’ capable of shaping the legal relations among the subjects it involves (Mastromartino 2021).

Its juridification implies that identifying patterns of structural violence must translate into positive State duties: to review, reinterpret, or set aside norms that reproduce inequalities, thereby guaranteeing effective conditions of equality and respect for autonomy.

This connection is reinforced by international human rights standards that recognize the material, cultural, and spiritual dimensions of autonomy. Thus, the notion of structural violence functions not only as a diagnostic tool but also as a normative principle guiding judicial and administrative decisions, orienting the protection of collective rights and the correction of exclusionary legal structures.

In sum, the normativization of structural violence translates empirical evidence of exclusion into concrete legal obligations (Larenz 2023). It requires legal actors to act upon and remove structural obstacles, ensuring that the autonomy and substantive equality of historically marginalized groups are effectively protected. In this sense, structural violence, conceived as a normative principle, redefines the function of law in contexts of historical inequality—not merely as a technical mechanism for conflict resolution, but as a transformative practice oriented toward structural justice.

5.2. Principles, Balancing, and Defeasibility

The category operates as an interpretive principle that activates heightened scrutiny or intensified review when the literal application of a rule would consolidate exclusion.

The contemporary debate on heightened scrutiny (Beschle 2018; Fleming 2006; Massey 2004; Shaman 1984; Pettinga 1987) and the principle of proportionality (Córdoba Azcárate and Martín Villalba 2019; Mathews and Sweet 2009) constitutes another central axis.

According to Galvan et al. (2025), fundamental rights can be understood as norms that simultaneously operate as principles, values, and enforceable legal rules. From this standpoint, they form the structural foundation of the political and legal system. In line with Chinchilla Herrera (2009), these rights encompass three dimensions: social, moral, and technical-constitutional.

The social dimension views fundamental rights as essential pillars that sustain peaceful and just coexistence; without them, the social order would collapse or become unbearably unjust. The moral dimension is grounded in the idea that these rights arise from human dignity, and that the absence of any of them diminishes or undermines that dignity. Lastly, the technical-constitutional dimension indicates that when a right is deemed fundamental, it benefits from reinforced guarantees against possible abuses or interferences by public authorities (Chinchilla Herrera 2009). Alexy (1993) has argued that fundamental rights possess a principled structure that requires optimization according to factual and legal possibilities, thereby opening the door to mechanisms of defeasibility. Along the same lines, Bernal Pulido (2003) maintains that the intensity of the proportionality test should be calibrated according to “the magnitude of the fundamental right at stake and the vulnerability of the affected subject.” Similarly, Clérico (2009) identifies strict scrutiny as a reinforced constitutional test that is precisely triggered in contexts of vulnerability.

However, authors such as Ferreres Comella (2020) caution that the principle of proportionality requires a substantive theory of rights to provide it with normative grounding, since its mechanics—suitability, necessity, and proportionality in the strict sense—are not sufficient on their own to capture qualitative distinctions between rights or to determine their relative weight. In the same vein, Córdoba Azcárate and Martín Villalba (2019) note that proportionality, in the European context, has been consolidated as an instrument of rational and progressive control whose purpose is to ensure that public measures are non-discriminatory and do not exceed what is necessary to achieve a legitimate aim.

The contrast between the North American model of levels of scrutiny and the European model of proportionality is one of the most fertile points in contemporary constitutional debate. Ibarra Olguín (2018) demonstrates that introducing levels of scrutiny (minimum, intermediate, and strict) within the proportionality test is methodologically problematic, as both respond to distinct structures and purposes: while the former originates from the principle of equality and the Equal Protection Clause in the United States, the latter arises from German administrative and constitutional law as a tool for controlling reasonableness and achieving material justice.

Likewise, Llinás (2023) emphasizes that strict scrutiny has both a historical and teleological foundation rooted in U.S. anti-discrimination law, originally designed to protect racial minorities in disadvantaged situations. However, its subsequent application to affirmative action cases inverted its protective logic, transforming it into a mechanism of judicial hostility toward substantive equality policies.

From the European perspective, Dieter Grimm (2010) has shown that the proportionality test has become the common language of global constitutionalism, as it allows for the calibration of judicial review intensity without ossifying categories of scrutiny. In Latin America, authors such as Carbonell (2010) and Uprimny Yepes et al. (2006) highlight the emergence of structural remedies (Callol and Pignatelli 2004) and reinforced reasoning (del Real Alcalá 2023), through which courts seek to correct historical patterns of exclusion by means of transparent and empirically grounded argumentation.

Comparative scholarship shows that both heightened scrutiny and proportionality converge around a shared challenge: to provide judges with verifiable criteria for detecting structural inequalities and for justifying differentiated constitutional remedies. Nonetheless, their genealogies and functions differ: the former responds to an anti-discrimination logic of U.S. origin, while the latter reflects a balancing and systematic rationality rooted in European tradition. For this reason, it is both theoretically legitimate and methodologically necessary to propose a specific legal test—one inspired by both traditions—aimed at revealing and correcting structural patterns of exclusion within Latin American jurisprudence.

As Dworkin (1988) observes, principles operate as interpretive reasons that correct normative literalism, guiding judicial decisions toward the moral coherence of the legal system. Along the same lines, Atienza (2007) argues that judges must transcend strictly textual readings when such readings produce outcomes incompatible with constitutional values, turning instead to principled reasoning that restores material justice. From a constitutional perspective, Zagrebelsky (1995) proposes understanding law as a ductile system, in which principles—rather than rigid rules—enable the resolution of conflicts in contexts of inequality or vulnerability.

Accordingly, the principle prohibiting structural violence can function as an interpretive argument pro homine or pro dignitate (Pinto 1997; Villarreal 2005; Melgar Rimachi 2015) and may even require the non-application, annulment, or reinterpretation of norms in cases of disproportionate impact. This mode of operation is grounded in autonomy and substantive equality, rather than in formal symmetries.

To operationalize the principle as a defeating reason, it must be endowed with a strict argumentative structure. MacCormick (1978) introduced the notion of defeasible reasons to describe principles capable of invalidating general rules under justified conditions. There must exist a clear diagnosis of the exclusionary structure, a verified violation of superior principles such as substantive equality or autonomy, and a demonstration that non-application is both proportional and necessary. These requirements ensure intersubjective control and decisional predictability (Alexy 1993).

An illustrative example of this defeasibility logic and its connection to proportionality can be found in Chilean jurisprudence concerning informal land occupations. In such cases, the Court warns against purely punitive prohibitions and instead orders autonomous relocation or the effective recognition of territorial or housing rights. Such a decision avoids regressive effects and protects the constitutional goods at stake.

Balancing, in turn, is articulated through criteria of reasonableness (Martínez and Zúñiga Urbina 2011) and epistemic standards regarding risk (Larroucau Torres 2012). As Terry (1915) noted, “precautions should not be taken against every conceivable or foreseeable danger, but only against those that are probable”, yet precaution prevails when there are serious and irreversible harms that are difficult to measure. This combination guides the burden of argumentation in contexts of uncertainty, allowing for judicial decisions that are more just and structurally sensitive.

5.3. Prototypical Effects: Formal Dispossession, Value Invisibility, and Lack of Protection

The abstract mechanism of exclusion emerges when liberal legal dogmatics confront relational practices, producing a structural misalignment that manifests through three prototypical effects.

Formal dispossession: The transfer of titles without valid consultation or genuine consent—required through individual registration, traditio, and monetary compensation—appears ‘legally impeccable’ yet entails a substantive loss of territory. Formal legality thus conceals material injustice (Kuokkanen 2023).

Value invisibility: Market valuation disregards the ‘identity–spiritual value’ of the territory, rendering the so-called ‘fair compensation’ culturally unjust, as it ‘commodifies’ a good that constitutes the foundation of collective identity (Núñez Poblete 2017). Price replaces meaning, and compensatory measures function as mechanisms of defective translation.

Impossibility of adequate protection: The available remedies—actions for recovery, compensation, precautionary measures—primarily safeguard individual rights, rather than the collective and spiritual dimension of the community–territory bond. As a result, comprehensive reparation remains blocked (Carmona Caldera and Chubretovic Arnaiz 2025).

Taken together, these three effects express a form of structural violence: “law, even unintentionally, operates as a device that translates and subsumes communal practices into individualistic categories, generating exclusion under the guise of neutrality” (Baghino, forthcoming a). Chilean jurisprudence illustrates this dynamic: the threshold of ‘significant impacts’ replaces the susceptibility required by ILO Convention 169, thereby eroding the preventive function of prior consultation (ILO 169, arts. 6 and 15). Participation is activated too late—when the harm has already occurred—and protection loses its anticipatory nature.

The Yalquincha–Kamac Mayu case exemplifies the concretion of this mechanism: the Environmental Evaluation Service rejected Indigenous consultation based on criteria of distance and timing, disregarding the impacts on Atacameño spiritual and ceremonial practices. The technocratic logic of the procedure translated the sacred territory into an environmental category, denying its religious dimension. The defeating principle therefore requires, in this context, that norms which, though formally valid, consolidate structural exclusion and deprive sacred spaces of their spiritual meaning must yield or be reinterpreted (Dworkin 1988; Alexy 1993).

6. Operational Concepts for a Structural Violence Test in Jurisprudence

An operational legal principle is understood here as a normative category with practical applicability, capable of guiding both judicial interpretation and the creation of decision-making criteria. Following García Máynez (1959), legal concepts are normative and axiological representations that express relationships between subjects and duties within the legal system. When such concepts acquire a logical structure and verifiable conditions of application, they become operational legal concepts, that is, tools that allow the translation of abstract values or principles into concrete parameters for analysis and decision-making (Hartman 1995).

In this sense, an operational legal principle does not merely guide moral reasoning but functions within the technical domain of law, serving as a criterion of interpretation, justification, and validity control in contexts of structural inequality (Portela 2009). Its normative force thus derives from its dual dimension: descriptive, by diagnosing the exclusionary effects generated by a norm, and prescriptive, by requiring its correction through reinterpretation, defeasibility, or reinforced reasoning.

Legal anthropology offers fundamental comparative tools for understanding how different systems produce operative criteria, standards of proof, and mechanisms for selecting what counts as relevant. Gluckman’s (1973) classic study of the Lozi judicial process shows that categories such as relevance, admissibility, credibility, corroboration, and probative force are not mere technical instruments, but culturally situated modes of determining what ‘enters’ the decision-making process and what remains excluded from it. Likewise, Laura Nader (2002) highlights how procedures that appear neutral—such as harmony ideology or certain forms of mediation—function as instruments of social control that limit effective access to justice, especially for subordinated groups. These analyses confirm that each legal test embedded in judicial practices reflects normative and cultural assumptions rather than technical neutrality.

Pospíšil (1971) also contributes to this understanding, showing that every legal system, even in non-state societies, employs criteria of authority, causality, and intentionality that operate as genuine cognitive and normative tests. These criteria guide the application of norms and make visible the assumptions that underpin judicial decisions, confirming that the construction of operative standards is a cross-cultural constant. Furthermore, Moore (2000) demonstrates how ‘semi-autonomous social fields’ generate rules and criteria of application independent of formal norms, reinforcing the idea that legal tests emerge from the interaction between official law and social practices.

The notion of structural violence, as developed in this study, can be operationalized into a legal test designed to evaluate judicial decisions and legal norms. Its objective is not to invalidate a norm in the abstract (Burgoa Orihuela 2007) but to identify situations in which formal application generates systematic exclusion or reproduces historical hierarchies. To this end, the following operational concepts are proposed:

• Formal dispossession: Situations in which the norm results in the effective loss of collective or individual rights, even when formal requirements are met. For example, the transfer of property titles without valid consultation or consent from historically subordinated communities (Baghino, forthcoming a; Kuokkanen 2023).
• Value invisibility: The norm reduces identity-related, cultural, or spiritual dimensions to economic or individual categories—as occurs when monetary compensation replaces the cultural significance of territories or collective goods (Núñez Poblete 2017).
• Impossibility of adequate protection: Absence of procedural remedies capable of protecting collective, cultural, or spiritual rights, thereby limiting the effectiveness of available legal guarantees (Carmona Caldera and Chubretovic Arnaiz 2025).
• Structural vulnerability: Identification of historically subordinated groups exposed to the regressive effects of the norm, considering factors such as ethnicity, gender, class, or historical patterns of subordination.
• Norm–context discrepancy: Literal application of the norm disconnects recognized rights from the social, cultural, or community reality of affected subjects, generating structural misalignment.
• Cumulative effect: Exclusionary patterns are repeated and consolidate historical hierarchies, revealing the systematic nature of the impact.

The proposed test is conceived as both an analytical and normative instrument that integrates three functions: critical diagnosis, interpretive criterion, and normative principle. As a hermeneutical criterion, it guides the reinterpretation of norms whose literal application reproduces exclusion; as a normative principle, it justifies the non-application or reinterpretation of valid provisions; and as a diagnostic tool, it identifies persistent structural patterns that affect fundamental rights (Galtung 1990; Dworkin 1988; Alexy 1993; Navarro Ruvalcaba 2006; Arias 2025).

The proposed test follows Popper’s (1959) logic of falsifiability, according to which “the theory which is refutable would also be the one which is the more easily testable, and thus the one with the greater content” (Popper 1959). This implies that the test may yield a negative result under concrete empirical conditions—for instance, when no systematic patterns of exclusion are identified, when violations of fundamental rights appear isolated or undocumented, or when the relevant jurisprudence and doctrine do not support the existence of structural exclusion. Under these circumstances, the test would not detect structural violence, thereby satisfying the criterion of falsifiability.

To ensure empirical validity, cases will be analyzed in depth and selected intentionally, prioritizing rulings of legal significance recommended by experts in Indigenous law and human rights, as well as those involving allegations of systemic exclusion. The collection and documentation of cases will follow established doctrinal and jurisprudential review protocols found in the methodological literature on case study research in comparative law (Yin 2009).

7. Conclusions: How Should Judges Decide? Remedies for Structural Violence

Recognizing structural violence as a legal principle implies that judges must act both preventively and correctively in the face of norms and practices that, although formally valid, produce regressive effects on historically marginalized groups. The following criteria for judicial action are proposed:

• Diagnosis of the exclusionary structure: Assess whether the norm, in its design or concrete application, generates systematic exclusion linked to structural factors such as ethnicity, religion, gender, class, or historical subordination.
• Connection with superior principles: Verify whether the norm affects substantive equality, autonomy, or the right to an autonomous life, thereby establishing the constitutional relevance of judicial intervention.
• Proportionality and necessity of intervention: Determine whether non-application, reinterpretation, or limitation of the norm is the most reasonable way to prevent rights violations and whether less restrictive alternatives exist.
• Activation of the State’s positive obligations: Require measures such as autonomous relocation, effective recognition of territories, normative adjustment, or institutional adaptation, depending on the context and the nature of the potential harm.
• Case-by-case application: Adjust the norm to the concrete situation without invalidating it in the abstract, reorienting its application to prevent regressive effects and to guarantee effective conditions of equality and autonomy (Navarro and Rodríguez 2000).

This approach translates the critical category of structural violence into an operational legal tool: it enables judges to act in the face of formally valid but materially exclusionary laws, promoting solutions that respect collective, cultural, and spiritual rights. In doing so, jurisprudence can avoid reproducing historical patterns of subordination and contribute to the consolidation of a transformative law, consistent with constitutional commitments to substantive equality, autonomy, and social justice (von Bogdandy 2022; López Medina 2004).

Thus, the judge does not merely balance the ends and means of a measure in the abstract but incorporates a diagnosis of the structural context of inequality, allowing the proportionality assessment to be calibrated in a way that is more closely aligned with social reality (Díaz García 2011).

Moreover, the principle of structural violence empowers judges to order differentiated remedies (Giuriati 2023): alongside individual reparations, they may establish structural remedies—such as normative adjustments, institutional adaptations, or monitoring mechanisms—thereby strengthening the effectiveness of law in addressing persistent inequalities. This design reinforces the requirement of reinforced judicial reasoning (Castillo 2022; del Real Alcalá 2023), compelling judges to explicitly explain how historical conditions of subordination influence the interpretation of the specific case, thus ensuring transparency and democratic accountability.

In conclusion, the notion of structural violence enables the identification of how law reproduces patterns of exclusion under the guise of neutrality. Its incorporation as a normative and hermeneutical principle broadens the scope of legal reasoning toward a substantive understanding of equality. The religious sphere constitutes a paradigmatic laboratory for understanding structural violence in contemporary law. Here, the legal order encounters its own limit: the impossibility of translating the sacred without depriving it of its original meaning. By subjecting spiritual practices and ceremonial territories to categories such as property, procedure, or public interest, law reaffirms a Western epistemological matrix that renders Indigenous normativity invisible.

Recognizing this tension does not entail abandoning legal language but rather expanding it: incorporating the prohibition of structural violence as an interpretive principle allows law to recognize the spiritual as a legitimate dimension of autonomy and substantive equality. In this way, structural violence, understood as a normative principle, redefines the function of law—not merely as a technical mechanism for conflict resolution, but as a transformative practice oriented toward structural justice and the full recognition of cultural and spiritual diversity.