Legal Pluralism and the Continuing Quest for Legal Certainty in Ecuador: A Case Study from the Andean Highlands

Abstract

In 1998 Ecuador constitutionally recognised the use of customary law alongside national law, through which a situation of formal (de jure) legal pluralism came into being. However, rules that would define the personal, territorial and material jurisdiction of both forms of law have never been approved and no case law has yet been developed. There is still no general agreement regarding the proper scope to be granted indigenous authorities for the administration of customary law. The purpose of this article is to shed light on that ongoing challenge by focusing on its practical implications at the local level. Starting with an historical overview of how legal pluralism has been dealt with over the last 500 years, this article proceeds to examine the contemporary situation, including an interpretation of a recent homicide which occurred in the indigenous parish of Zumbahua. The indigenous proceedings in this case support this article’s thesis that the absence of coordinating rules, and the resulting legal uncertainty, may be leading to increasingly punitive measures by indigenous authorities.