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A Political Analysis of Legal Pluralism in Bolivia and Colombia

Author: D Van Cott
Date: 2000
Size: 27 pages (232.4 KB)

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Summary

What has been the experience of implementing legal pluralism - the simultaneous existence of distinct normative systems within a single territory – in Latin America? What are the most important factors affecting the practical realisation of legal pluralism? This paper from the University of Tennessee compares recent efforts in Bolivia and Colombia to implement new constitutional provisions that recognise the jurisdiction of indigenous authorities over the administration of justice within specific territorial units.

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 capacity of the political system, the legal tradition and society to tolerate normative diversity.
• The geographic isolation and cultural alienation of indigenous communities.
• The degree of internal division within indigenous communities, movements on legal pluralism, in general, and in specific cases that have arisen.
• The availability of effective legal mechanisms to indigenous communities seeking to protect legal rights.

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:

• Allocate sufficient resources to educate judges and attorneys about indigenous legal practices and the new national and international norms of indigenous rights.
• Train Indians from all language groups as judges, advocates and translators.

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Source: 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