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ABSTRACT
In many countries, there are distinct communities that administer justice following their own laws. Often this informal justice is not regulated by official state law. This situation can be called empirical legal pluralism. But regularly aspects of this local law are incorporated into state laws, for instance when traditional, local authorities are granted some official competence as state judges. In a few countries, particularly in Latin America, the local indigenous law as a whole is recognized on a par with state law. These are examples of formal legal pluralism. The question is whether the local jurisdiction changes under these conditions of formal legal pluralism, and if so, in what way? How are the local ways of viewing man, social relations, nature, spirituality, and the good life – their cosmovision – distorted by their law becoming part of the national legal order that manifests a different, more individualistic philosophy? This local cosmovision is sometimes poorly understood and not respected by the dominant elites and legal functionaries of the state. In this article, we look for examples of such cross-cultural misunderstandings. Two cases of the national jurisprudence exercised by a state constitutional court will be discussed, one showing this misunderstanding, and the other one overcoming it.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. I prefer the term local law to prevent any suggestion about its content, legitimacy, and origin, particularly as regards the linkage to state law.
2. Below the notion of communalism will be discussed. See Section 5.
3. But Herrera did (Citation2011).
4. About community-based tenure, see Section 5.
5. I make a distinction between distinct communities and instrumental ones. Instrumental communities are deliberately created to promote some goal, like the representation of some industry at the national government level or to serve the future of an association of professionals. Distinct communities are mini-societies covering many spheres of life like a Mayan community in Mexico, where the biggest part of the members feel that their community protects their identity as Mayans. A distinct community is identity-related. There may be in-between cases of instrumental communities that cover aspects of a specific identity-related community.
6. I call such rules internal conflict rules to distinguish them from so-called conflict rules in international private law. Woodman (Citation2013, 28) calls these rules “choice of law principles”.
7. But see Sieder (Citation2011), D'Engelbronner-Kolff (Citation2001), Himonga [2011] Citation2013, and Nhlapo (Citation1995).
8. Often there are more contrasting cosmovisions involved, like an Islamic or a Buddhist one. But there are important differences as well within what may be called indigenous cosmovision.
9. This expression comes from Ramiro Molina, a Bolivian researcher. “Aqua y aceite” can be expressed in English as “water and fire”. Recently, there were wide-ranging discussions in Bolivia about how to set-up a constitutional plurinational tribunal to check if local chiefs as well as ordinary state judges were respecting constitutional rights and guarantees, like universal human rights but also the rights of the distinct communities to be respected in their different views of how to live a good life. But the indigenous partners in these preparatory discussions concluded that the proposed constitutional test had a Western legal and political style and did not respect the main philosophy of the indigenous population.
10. This case was analysed by Assies (Citation2003).
11. Apart from the institutional aspects of law, one has to distinguish the ways in which judges – whether traditional or state judges – use the norms and values of a legal order, as well as the practice of law, meaning the ways people address the legal order in line with what they expect was promised to them.
12. Sally Merry (Citation1998, 577): “instead of a reified notion of a fixed and stable set of beliefs, values and institutions, culture is being redefined as a flexible repertoire of practices and discourses through historical processes of contestation over signs and meanings.”
13. My translation, ajh.
14. Following Lynch and Talbot (Citation1995).
15. I am concentrating on rural land, disregarding urban communal plot holdings.
16. See Henquinet (Citation2013, 226) arguing about a community in Niger that the notion of individual rights is not absent but exists “in relationships where duties are reciprocated and with a social hierarchy”. Also, McDonnell writing about the society of the Cree in Quebec, Canada, said, “their relations to each other were defined not on the basis of one individual to another, rather they were defined in terms of obligations and duties of granddaughter to grandfather, husband and wife, mother to son, etc.”
17. This is captured well in the title of an IIED brochure: Land in Africa, market asset or secure livelihood? (Quan, Tan, and Toulmin Citation2004).
18. This social value explains the fierce resistance against the introduction of individual and full private property (Platteau Citation1996, 55–56), and clarifies why and how local smallholders often feel secure under present communal arrangements.
19. Pirie (213, 191) formulates it as follows: “ongoing, albeit unspecific, obligations of protection and support.”
20. Schön and Rein (Citation1994, 79) once illustrated this trust excellently: “….to exhibit trust in such a context is to be prepared to act as though your counterparts will behave cooperatively in spite of the risk that they may not do so and in advance of the evidence that reveals how they will behave”. Being a member of a distinct community, or at least of a community that presents an evident interest in your welfare, facilitates this trust.
21. McDonnell analysed the cosmovision inherent in the Cree society in the north of Quebec, Canada. “By recognizing categories of people as different and by bestowing on these differences complementary practices, (the Cree) ensure an integration of individual efforts. It also discourages any sense of individual autonomy becoming overdeveloped.”
22. About this case Ruiz-Chiriboga (Citation2016).
23. My translation, ajh.
24. Sentencia No. 113-14-SEP-CC, caso no. 0731-10-EP.
25. Cabildo is the usual name of an indigenous group of people that has certain administrative competences.
26. My translation, ajh.
27. My translation, ajh.
28. Sentencia No. 008-15-SCN-CC.
29. My translation, ajh.
30. The statutory internal conflict rules were very strict (like not violating the laws of the Republic and human rights), but the Court stressed the fact that applying these utterly restrictive requirements would mean annihilating the grant of self-rule. The Court defined four categories of unacceptable customary decisions: imposing a death penalty, forcing people into a situation of slavery, allowing people to be tortured, punishing someone in ways that (s)he could not foresee at all. Colombia is the only country that has such an official system of coordination between state and indigenous jurisdictions. In countries like Bolivia and Ecuador, attempts are underway to do the same.
31. In other less generous recognition schemes, for instance in the case of incorporating some local law like about communal land tenure, there is no cause for the “no world view can prevail” thesis of the Colombian Constitutional Court, because the incorporation scheme does not provide an overall recognition of the culture (cosmovision) of a people and is generally restrictive, that is, dominated by the Western vision.