The Challenge of Legal Pluralism: Local Dispute Settlement and the Indian-State Relationship

Abstract

This thesis 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 more macro level, ontological assumptions underscore that legal pluralism is still seen as a dichotomy between customary law and national law. It is argued here 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.” On other socio-geographical levels, however, this thinking in terms of resistance holds true. Ecuador formally identified itself as a multicultural nation in 1998, an action that necessarily included recognition of customary law. Thus, a situation of de jure legal pluralism prevails in the nation. Because additional rules that would make customary law compatible with national law still had to be developed, this formal recognition led to legal uncertainty for indigenous people regarding how customary law could and should be used in cases involving internal conflicts. It is within this legal void that the de facto use of legal pluralism occurs. The formal recognition of diversity also led to a change in the indigenous population’s position in political society. Indigenous authorities and the state alike are now forced to deal legally as well as politically with the new reality of formal legal pluralism. The in-depth analysis of disputes in the rural parish of Zumbahua reveals that the perception and use of two different legal systems on the part of ordinary Indians reflect that, at the local level, these systems are mixed to such an extent that they have resulted in the creation of a new system, a reality that obtained in the villages of the Ecuadorian Andes for decades prior to the promulgation of formal legal pluralism. On a regional and national level, however, legal pluralism is understood as a jurisprudential process with more sharply defined boundaries. Indigenous authorities as well as state representatives (i.e., lawyers, judges and politicians) purposely seem to test the legal and political boundaries between customary law and national law. The legal void thus provides a space in which jurisdiction can be asserted. The use of customary law in a situation of formal legal pluralism is thus used to increase power rather than to settle a conflict.