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Latin American Legal Pluralism

Latin American Legal Pluralism

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Published by: CPLJ on Aug 24, 2011
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LEGAL PLURALISM AND INFORMALCOMMUNITY JUSTICE ADMINISTRATIONIN LATIN AMERICA
Donna Lee Van Cott, Ph.D.
1
Department of Political ScienceUniversity of Tennessee, Knoxville1001 McClung Tower Knoxville, TN 37996865/974-7042dvancott@utk.eduPrepared for the conference
INFORMAL INSTITUTIONS AND LATIN AMERICAN POLITICS
Sponsored by the David Rockefeller Center for Latin American Studies, Harvard University, and theHelen Kellogg Institute for International Affairs, University of Notre DameUniversity of Notre Dame Notre Dame, IndianaApril 24-25, 2003
 
2Informal legal systems,
2
have developed and persisted within the vacuum of legal protectionand the rule of state law that exists in Latin America—Guillermo O’Donnell’s famous “brown areas”(O’Donnell 1994). Large segments of Latin American geography and society have existed outside thereach of the law for centuries, and there has only been an effort to address this problem with adequateresources since the last decade. Informal legal systems are perhaps among the most necessary andconstructive informal institutions in the region, given the extreme weakness of the formal institutionsthey replace or complement.In this paper I survey diverse examples of informal systems of law and justice administration,focusing mainly on what is usually called “indigenous customary law” or “
usos y costumbres
.”Because of the subordinate connotations of both terms, indigenous peoples prefer “indigenous law” or “indigenous legal systems,” the terms that will be used in this paper. I describe how and why informallegal institutions originally emerged, and how they have changed over time. I next examine efforts inthe last decade to legally recognize informal justice systems and to link their jurisdictions to that of thestate. I discuss the reasons for this “formalization”, and the problems that have emerged in the effortsto establish “legal pluralism.”
3
I show how the demand for recognition of indigenous customary law isan integral part of the defining claim of indigenous people’s movements for self-determination asdistinct peoples. I argue that the increasingly successful mobilization of such movements occurred at atime when many Latin American states were searching for ways to extend the rule of public,authoritative law, geographically, and for more sectors of society, particularly in remote areas. In theconcluding section I discuss important issues raised by the foregoing in light of the concerns of thisgathering: How can we measure and compare these informal justice systems? How have informal justice systems contributed to the quality and accessibility of the rule of law? What impact do informal justice systems have on the efficiency, legitimacy, and accessibility of the formal justice system?
 
3What are the implications of the foregoing for the quality of democracy, particularly in multiethniccountries? The paper has an Andean bias because I have done most of my research in the five Andeancountries, but also because those countries are most advanced in recognizing the authority of informallegal systems.
SURVEY OF INFORMAL JUSTICE SYSTEMS
In this section I describe three forms of informal community justice systems: indigenous law,the
rondas campesinas
of northern Peru, and urban community law in Bolivia.
Indigenous Peoples’ Law
Prior to the arrival of Europeans the peoples indigenous to the Americas
4
established systemsof political and juridical self-government. Thus, indigenous law has a special character with respect tostate law: its existence and authority precedes the creation of the state (Gómez 2000: 5; Villoro 1997:113). The imposition of colonial rule, however, had an enormous impact on these systems. In somecases they were destroyed. Elsewhere they were transformed and adapted to the subordination of indigenous authorities to colonial rule. Colonial administrators tolerated the normative, administrative,and jurisdictional activities of indigenous authorities to manage minor, internal matters confined tospheres that did not impinge on “divine and human law” (Yrigoyen 2000: 206). Indigenous authoritiesserved as useful intermediaries between colonial authorities and the native population and an efficientmeans of indirect social control. Some indigenous legal systems originated in the colonial period.They were established as links between the community and colonial authorities, or were created andimposed by colonial authorities. Over time, Indians appropriated these systems, adapted them, andmade them their own. The classic model of indigenous authority dating to this period is the
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