The Challenge of Legal Pluralism

Local dispute settlement and the Indian-state relationship in Ecuador

Marc Simon Thomas

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317039181
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Within the Latin American context, legal pluralism is often depicted as a dichotomy between customary law and national law. In addition, the use of customary law alongside national law is frequently portrayed as a vehicle of resistance.

This book argues that, because ordinary Indians are not positively biased in favor of customary law per se, a heterogeneity of legal practices can be observed on a daily basis, which consequently undermines the commonly held view of customary law as a "counter-hegemonic strategy", even if, on other socio-geographical levels, this thinking in terms of resistance holds true. Based on qualitative research, the work analyzes how internal conflicts among indigenous inhabitants of the Ecuadorian highlands are being settled in a situation of formal legal pluralism, and what can be learned from this in terms of Indian-state relationships. It is shown that, on a local level, the phenomenological dimension of legal pluralism can be termed "interlegality." On a macro level, ontological assumptions underscore that legal pluralism is still seen as a dichotomy between customary and national law.

Multidisciplinary in nature, the book will be of interest to academics and researchers working in the areas of Legal Pluralism, Cultural Anthropology and Latin American Studies.

1 An introductory overview

No somos ángeles: introduction to this book

The first time I heard someone mention that some of the subjects of my research might “not be angels” was in August 2010, when I attended the biannual RELAJU meeting in Lima, Peru.¹ I received this word of warning from a lawyer who, in presenting his views on the contemporary situation of legal pluralism in Ecuador, argued that not every single member of a local indigenous authority was as fair, honest, and impartial as they were sometimes depicted.² He stated that some local leaders “no son ángeles” (“are not angels”) in a presentation on the pros and cons of customary law. Basically, he was arguing that, because of an insufficient system of accountability, customary law – or at least those who administer it – can often result in biased conduct. Because of this, he argued that the recognition of customary law be as limited as possible. I partially agree with his observation, but I thoroughly disagree with the conclusion he drew from it. And so did most of the audience that was attending his presentation.

The second time I heard a similar statement was in a totally different setting. I was seated next to the teniente político in the remote Andean village of Zumbahua, observing a local trial. In addition to myself and the teniente político, his secretary, a police officer, the parties involved, and several dirigentes (local indigenous leaders) of neighboring communities were present in his small office. The conflict that had to be settled had to do with marital infidelity and a physical altercation between spouses.³ While persuading the parties in that local conflict to reconcile, one dirigente stated that “nadie somos santos” (literally: “none of us is a saint,” meaning that nobody is perfect). Basically he was downplaying the tensions over what was actually at stake by arguing that making mistakes was part of being human. And so was – he pointed out – making peace following a conflict. As such he was giving expression to a fundamental value of local customary law: reconciliation. Neither I nor anyone else present disagreed with his reasoning.

Although referring indirectly to the same phenomenon, it is clear that legal pluralism does not mean the same thing to both the lawyer and the dirigente. The lawyer should be seen here as a representative of national law. In a way he was formulating Ecuador’s unofficial – but nevertheless frequently practiced – political and juridical position regarding the relationship between customary and national law: although its use is constitutionally recognized, its shortcomings can hardly be overemphasized and its actual scope is in fact severely limited.⁴ The first example is therefore illustrative of how the challenge of implementing formal legal pluralism in the absence of coordinating rules (harmonizing both legal systems) is often faced. For many of the parties involved (for example, scholars, jurists, politicians, and even some indigenous leaders), the debate concerning legal pluralism is fundamentally about individual rights vs. collective rights. In this view, the essential question of the debate concerns which cases customary law can be applied to, by whom, and when – within national and international law. Legal pluralism is thus understood as a jurisprudential process, and there are particular ontological assumptions which underlie such an understanding.⁵

The dirigente in the second vignette above represents the phenomenological dimension of legal pluralism. One should bear in mind that, although the teniente político of Zumbahua in the example is a state official, he in fact settles most conflicts presented to him according to customary norms and procedures. A state official applying customary law suggests that, at least in daily practice, there is a certain fluidity between the two legal systems. This is reflected by the dirigente in the second example. Contrary to the highlighted differences between customary law and national law, and the problems regarding their harmonization indicated by the lawyer, the second example reflects a more nuanced daily reality. What we see in the two vignettes above is a difference between legal pluralism seen as a jurisprudential process and legal pluralism experienced as an empirical reality.

Objectives and research question

Legal pluralism is generally understood as “the presence in a social field of more than one legal order” (J. Griffiths 1986: 1), which can be described and analyzed both as situational and as a process. In the Ecuadorian context, this means that the existence of customary law alongside national law is both a fact and an ongoing process, which has to be seen in the context of the relationship between indigenous people and the state. In accordance with Moore’s “semi-autonomous social fields” (Moore 1978), legal pluralism involves the dialectical and mutually constitutive relationship between customary law and national law (Merry 1988: 880), considering that this relationship is not power-neutral (Sieder 1997). Studying legal pluralism involves conducting legal-anthropological research, while taking historically changing legal and political power structures into account.

Along with Africa and Asia, Latin America is heavily represented in the literature on legal pluralism. Within the Latin American context, legal pluralism is often depicted as a dichotomy between customary law and national law. In addition, the use of customary law alongside national law is frequently portrayed as a vehicle of resistance – that is, a strategy of indigenous people to use their “traditional” norms and practices to protect their autonomy against encroachment of the state.⁶ In the words of Sieder (1997: 10): “Legal pluralism is […] understood as a relation of dominance and of resistance.” It is far from evident, however, if this is the case wherever legal pluralism is present. An analytical approach that views legal pluralism as consisting of two distinct legal systems must be empirically verified rather than assumed a priori.

An important argument that this book will make is that indigenous people in Ecuador do not always prefer customary law to national law. On the contrary, these people are typically very well aware of the option of turning to national law when the latter is likely to result in outcomes more favorable to them. Therefore, viewing customary law solely as a “counter-hegemonic strategy” does not adequately explain the heterogeneity observed in the legal practices of ordinary Indians. Thus, in cases involving internal conflicts, such individuals sometimes use customary law, at other times turn to national law, and in still other cases make use of both legal systems. Yet such a characterization obscures a much more fundamental point: more often than not, rural Indians do not even distinguish between the two different systems. By this I mean that, on a micro level, their options are not always that clearly distinct, and consequently their everyday lived experience of legal pluralism is not that of a dichotomy. The present volume will show that the way in which legal pluralism is experienced depends on who is applying or talking about customary law and under what circumstances. In other words, legal pluralism has different meanings at different socio-geographical levels.

Drawing on de Sousa Santos’ notion of “interlegality,” this study underscores the notion that the daily practice of legal pluralism in the Andean highlands is not one of clearly separated legal systems and corresponding authorities, but rather that of “different legal spaces superimposed, interpenetrated, and mixed” (de Sousa Santos 2002: 437). Consequently, this book rejects the idea that, in a situation of legal pluralism, everybody makes the kind of conscious and rational choices referred to in the legal anthropological literature as “forum shopping” (K. von Benda-Beckmann 1981). Portraying legal pluralism as a dichotomy is far too simplistic. Instead, the options ordinary people have for settling their conflicts seem to exist on a continuum. This observation is not new; de Sousa Santos (2002), A. Griffiths (2002), Hoekema (2004), Sieder (2001), Sierra (1995a, 1995b), and von Benda-Beckmann and von Benda-Beckmann (2006) to name just a few, have already shown that “the posited division between ‘customary law’ and ‘state law’ [is] in fact a legal fiction” (Sieder 2001: 211). The new contribution that the present study makes is in providing insight into how, and why, people make use of the possibilities provided to them by a situation of formal legal pluralism (that is, a situation in which the Ecuadorian Constitution recognizes customary law alongside national law).

But just as important as the notion of interlegality on a local level is recognition of the fact that, on other socio-geographical levels, legal pluralism is also often posited as a dichotomy. Thus, on a macro level, a strong distinction between customary law and national law is frequently drawn. We will see that, in the view of some local indigenous leaders, provincial and national jurists and politicians, and the national indigenous movement, there is a very real division between customary law and national law. Such a division has recently become manifest because Ecuador has constitutionally recognized customary law while failing to develop rules defining the proper scope of jurisdiction of customary law in relation to national law. It is this legal void that is of specific interest in the present study. The view of those who believe there is a dichotomy in the application of the two systems can be seen as an example of law-on-the-books, as opposed to law-in-action. They treat a situation of legal pluralism as if it were an analytical framework of two different legal systems, a conceptualization which flies in the face of how the interplay of the two systems is experienced by highland Indians.

This book will show that legal pluralism does not mean the same thing to all people. To this end, three detailed case studies will describe how legal pluralism works in daily practice in Ecuador, a culturally diverse country which recently has constitutionally recognized the use of customary law alongside national law. By providing an empirical understanding of such a situation, this book aims to gain empirical insight into how a situation of formal legal pluralism in which coordinating rules are absent works in daily practice for Ecuadorian Indians living in the Andean highlands. Additionally, it strives to use these insights to make a contribution to the understanding of legal pluralism in general.

Research setting

Ecuador is one of the smallest countries in Latin America. The chain of the Andes Mountains divides the country into three different zones: the coast, the highlands, and the eastern or “Amazon” region. Ecuador has a population of 13.5 million people. Roughly one-third of the population is considered indigenous; the other part of the population consists of whites, mestizos, and Afro-Ecuadorians.⁷ The indigenous population consists of more than ten major groups (called “nationalities”) with even more subgroups, and a variety of different languages.⁸ The indigenous peoples of the nation are categorized in terms of their residence in one of the three areas of the country. The highland Kichwa Indians are the largest indigenous group, and the above example of the dirigente originated among their Panzaleos subgroup.

As is the case in most Latin American societies, Ecuador has been multicultural in its composition (that is, different cultures and groups, with different customs) since colonization, and therefore it has had experience with legal pluralism for nearly five hundred years. Ecuador has dealt politically with its cultural diversity in a variety of different ways, alternately employing assimilationist, integrationist, and – most recently – multicultural models. However, for centuries, ethnic difference did not play an important role in the country’s politics, or in its legal and administrative arrangements. Struggles between indigenous people and power holders could most usefully be classified as class struggles. Past legal disputes over economic and political differences thus typically concerned working conditions or access to land and other natural resources, rather than “indigenous rights,” this latter notion only having emerged during the past thirty years (Pallares 2002). As a result of the recent emergence of an Indian resistance movement in the country,⁹ a new constitution was proclaimed in 1998 in which Ecuador legally acknowledged its cultural diversity.¹⁰

Several explanations have been proffered to explain the development of this stronger ethnic consciousness and concomitant indigenous activism. Yashar (2005) argues that contemporary “changes in citizenship regimes,” accompanied by the development of a “political associational space” and pre-existing “transcommunity networks,” politicized indigenous people. Van Cott (2005), on the other hand, sees the decisive factor in this transformation as the crisis of the traditional political parties and the new political space resulting from the decline of class identities and disparities. Additionally, Sieder (2002) cites the development of international jurisprudence, which increasingly characterized the rights of indigenous peoples as “human rights.” In this respect, ILO Convention 169 is considered the most important international instrument.¹¹ All of these explanations should be seen in relation to the structural adjustments policy and the regnant neoliberalism of the 1990s. Assies (2000b: 3) argues that Indian resistance has been driven by a combination of political liberalization, economic restructuring, and state reform. However, other researchers, such as Baud (2009), Becker (2008), Brysk (2000), and Korovkin (2001) point instead to a long history of indigenous activism (especially in the Andean highlands) in order to explain its recent dramatic eruption in Ecuador. Thus, we cannot understand present-day indigenous activism without taking into account a wide range of historical, political, economical, and international legal circumstances.

The ways Ecuador has been dealing politically with its cultural diversity are reflected in the manifestations of legal pluralism over the past five centuries. It was only in 1998 that a policy of formal legal pluralism followed that of legal monism, which had been dominant for centuries. From a long-lasting situation of de facto legal pluralism (in which Spanish or national law was considered the only officially applicable law, and customary law was tolerated to a certain extent), a situation of de jure legal pluralism recently developed. It is largely because of the efforts of the Ecuadorian national indigenous movement CONAIE that,¹² as a reflection of Ecuador’s acceptance of cultural and ethnic diversity, the 1998 Constitution recognized the use of indigenous customary law along with national law, thus bringing formal legal pluralism into being. After five centuries of merely de facto legal pluralism, this was truly a watershed development.

The 1998 Constitution was passed a number of years after similar reforms in Bolivia (1994), Colombia (1991), and Peru (1993), and it can be justly said that it included more extensive formal recognition of customary law than most other Latin American countries (Andolina 2003: 724). However, in what seems like a vindication of the notion of “the dialectics of progress,” this innovative legislation is enforced very inconsistently (Simon Thomas 2009: 39). For example, so-called coordinating rules (that is, rules that would define the personal, territorial, and material jurisdiction of both forms of law) have never been approved, and no case law regarding such differentiation has yet been developed. It seems as if the Ecuadorian state formally “endorsed” customary law (for political reasons), while doing nothing to support it, and that it even tried in subtle ways to undermine it (Tamanaha 2008: 50). The Correa administration’s critical attitude towards customary law can be seen as an example of this phenomenon.

In his introduction to the edited volume The Challenge of Diversity, Willem Assies pointed to the necessity of “further study of the relationship between new legislation and concrete practices” (Assies 2000a: ix). He specifically addressed the implementation of formal legal pluralism. Several scholars have taken up that challenge, among them Charles Hale (2002) and Rachel Sieder (2002). Most research on these neoliberal constitutional changes, however, took place when the winds of neoliberalism were still blowing strong. With the leftist president Rafael Correa in power since 2007, it is interesting to see how this continuing challenge of diversity in Ecuador has evolved after a shift in the political winds. As in the case of the legal and political debates over the jurisdictional scope granted to customary law, tensions can be detected regarding other indigenous agendas which have been recognized in the 1998 Constitution and its successor, the Montecristi Constitution of 2008.¹³ In other words, the recent new policies aimed at reversing neoliberalism (Becker 2011a) call for a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• List of abbreviations
• 1. An introductory overview
• 2. Legal pluralism, multiculturalism, and the state
• 3. Legal pluralism in Ecuador
• 4. The parish of Zumbahua: Cohesion and conflict
• 5. Conflicts, authorities, and procedures
• 6. Interlegality at the teniente político’s office
• 7. Trouble in Tigua
• 8. The La Cocha-Guantópolo murder case
• 9. Conclusion
• Bibliography
• Index