A Political Analysis of Legal Pluralism in Bolivia and Colombia
Author: D Van Cott
Size: 27 pages (232.4 KB)
The constitutional recognition of cultural differences, including legal pluralism, was a strategy employed by many Latin American governments during the 1990s to consolidate the fragile legitimacy and legality of democratic institutions. Political mobilisation by indigenous peoples organisations played a role in securing this change. The challenge now is to codify this relationship formally to represent the transformation in indigenous-state relations implied by the new constitutions.
While there is a striking similarity in the constitutional language of legal pluralism in Bolivia and Colombia, the political contexts of implementation are distinct. Colombia, with a proportionally small and urban indigenous population, represents the most ambitious attempt to implement legal pluralism. However, it has seen more conflicts over the jurisdiction of customary law. In Bolivia, where 66 per cent of the population is indigenous, and geographically and culturally isolated, the state has traditionally been less involved in indigenous community justice issues.
The comparison between Bolivia and Colombia shows that the success of legal pluralism is determined by the outcome of repeated strategic interactions among indigenous people's organisations, the professional judiciary, and state institutions. These interactions are affected by:
The democratic legitimacy of both states is fragile. Neither has so far been willing to impose its vision of legal pluralism on authorities that enjoy greater popular support and legitimacy than the state. However, the international discourse on multiculturalism and the growing acceptance of legal pluralism in constitutions and international human rights law has reinforced the tolerance of indigenous customary law. The most important challenges today are to:
Lee Van Cott, D., 2000, 'A Political Analysis of Legal Pluralism in Bolivia and Colombia' Journal of Latin American Studies, No. 32, pp 207-234