Professional Documents
Culture Documents
Legal Pluralism:
The New Emancipatory Framework
in Latin America
Antonio Carlos Wolkmer*
This article discusses the meaning and political impact of legal pluralism in Latin
America. It begins by clarifying the different meanings of legal pluralism in the
sociolegal literature on Latin America and commenting on the critiques that have
been raised against such a concept. It then contrasts the conservative and the
emancipatory uses of legal pluralism, and argues that the latter has a strong
potential for promoting alternative legalities capable of advancing the interests of
the marginalized majorities in the region.
INTRODUCTION
In the context of a sociological discussion of the structural changes that the
global society is passing through at the turn of the millennium, it is appropriate to point out the relevance of the degree of efficiency, or lack thereof,
of the current normative model of social control and regulation on the Latin
American continent. The first condition for a process of change in these
societies on the capitalist peripherytraditionally unstable and conflictive
consists in the democratic reconstruction of civil society, the redefinition of
state functions, and the implementation of a regulatory system identified
with the needs of the new emerging actors.
At the end of the 20th century, the classic Western model of legal positivism, begotten of state sources and packaged in the values of liberal individualism, experienced a profound exhaustion, which left a mark on its
very foundations, its objective and its sources of production. The collapse
*
Researcher and Professor at the Center for Legal Sciences at the Federal University of Santa
Catarina (Brazil).
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of this formal legal logic, which since the 18th century has served to regulate and legitimize the interests of a bourgeois capitalist legal tradition,
opens up space for a discussion of the conditions of the breakdown, as well
as the possibilities for an emancipatory project now based not in formalist
idealizations and technical rigidity, but rather in assumptions which arise
from current historical conditions and real practices.
The cultural and normative models that justified the life world, social organization, and scientific criterion became unsatisfactory and limited, opening space to sociologically rethink new norms of reference and
legitimization. Transplanting this into the sociolegal allows us to admit that
the normative structure of modern formal positivist law is inefficient and
unable to handle the competition of todays peripheral societies, such as
those of Latin America, which experience various types of capital reproduction, accentuated social contradictions and currents which reflect a crisis of legitimacy and of the functioning of justice.1
From this is born the obligation to propose and introduce into Latin
American sociology of law a discussion on the dominant paradigm crisis
and the break with founding models, as Thomas S. Kuhn (1975) has observed, who says that crisis is a necessary precondition for the rise of new
theories and new referents.
Hence, the construction of another regulatory referent implies giving priority to the most immediate of civil societys aspirations, involving
the expression of a cultural project that is demystifying and emancipatory.
And not incidentally, it corresponds to the idea postulated by Colombian
sociolegal scholars Csar A. Rodrguez and Mauricio Garca in the article
that prompted this essay. These authors pave the way for the important
task of involving all of those committed thinkers in the installation of a
new emancipatory framework of law in Latin America in an effort to develop common referents for reflection, as well as consistent explanations
regarding specificity of practices and regional legal culture.
The pedagogical dimension of this process has the strategic purpose
of socially and politically preparing the horizons of a new paradigm of
legality. The proposed legality imagined for this century which we are entering is based in a certain type of pluralism which is capable of recognizing
and legitimating extra- and infra-state norms engendered by the shortages
and needs arising from new social actors, and of grasping the legal representations of emerging societies marked by structures of precarious inequality and pulverized by spaces of permanent conflict.
1
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the sovereign state will. It is true that throughout the 17th and 18th centuries, little by little absolute monarchism and the emerging Victorian bourgeoisie unleashed the process of bureaucratic uniformization that would
eliminate the medieval structure of corporate organizations such that legal
and judicial pluralism would be reduced. Although the initial theoretical
bases of the legal monist culture can be found in the works of authors such
as Hobbes and in the development of the unified nation-state, it was with
the post-revolutionary French Republic that the disposition to integrate
diverse legal systems on the basis of the equality of all of them before a
common legislation, was accelerated. A more attentive analysis reveals that
the solidification of the monist myth, that is, the myth of centralization,
was achieved through the Napoleonic administrative reforms and the promulgation of a single and unique civil code to govern all of society.
The consolidation of bourgeois society, the total expansion of industrial capital, the wide dominion of philosophical individualism, political
liberalism and the dogma of legal state centralism, favored a strong reaction on the part of the pluralist doctrines at the end of the 19th century and
through the first half of the 20th century.
There seems no doubt that in the first decades of the 20th century,
pluralism resurged in the thought of philosophers and publicists (Gierke,
Hauriou, Santi Romano and Del Vecchio) and of sociologists of law (Ehrlich
and Gurvitch) as an alternative to positive state normativism. No less important was the reclaiming of pluralism in the 1950s and 1960s by empirical
researchers in the area of legal anthropology like Pospisil, Falk Moore and
Griffiths (see Griffiths 1986; Guevara and Thome 1992; Ehrlich 1986).
In light of its contemporary meaning, it is important to have a clear
notion of what pluralism is, and of what are its causes, varieties and problems. To begin we must designate legal pluralism as the multiplicity of existing practices in the same socio-political space, which interact through
conflict or consensus, which may be official or unofficial and which have their
own raison dtre in existential, material, and cultural needs (Wolkmer 2001).
Starting from this concept, some of the determining causes for the
appearance of legal pluralism become apparent. Examining the phenomenon more attentively, the Coimbra professor Boaventura de Sousa Santos
notes that the rise of legal pluralism resides in two concrete situations,
with their possible historical explanations: a) colonial origin; b) noncolonial origin. In the first instance, legal pluralism develops in countries
which where being politically and economically forced to accept the legal
norms of the metropolis (British colonialism, Portuguese colonialism, etc.).
With this, the unification and administration of the colony was forcibly
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imposed, allowing for the coexistence in the same space of colonizing state
law and traditional [native] laws; coexistence that at times became a factor in conflicts and precarious accommodations (Santos 1988).
Beyond the explicating colonial context, Boaventura de Sousa Santos
emphasizes that three different situations should be considered in the realm
of non-colonial origin legal pluralism. In the first place, countries with
their own cultures and normative traditions, which end up adopting European law as a form of modernization and consolidation of the political regime (Turkey, Ethiopia, etc.). The second instance has to do with the hypothesis that certain countries, after suffering the impact of a political
revolution, continued to maintain their old law for some time, despite its
being abolished by the new revolutionary law (Islamic republics incorporated into the old USSR). Finally, the situation in which indigenous or native populations not completely exterminated or submitted to the coercive
laws of the invaders acquire authorization to keep and conserve their traditional law (Native North American and Oceanic populations) (Santos
1988:74).
Taking into account considerations on the nature of justice as a reflection of the application of law in Brazilian society in the 1970s and 1980s,
Joaquim A. Falco introduces in an innovative way the assertion that the
direct cause of legal pluralism must be found in the very crisis of political
legality. In contrast with what certain other currents of pluralism might
believe, Falco understands that in Third World countries such as Brazil,
the appearance of para-legal rulesparallel or extralegal, encouraged by
the official state, accepted or notis directly correlated with the variable
of legitimacy of the political regime (Falco 1984:61-85).
The Belgian researcher Jacques Vanderlinden (in Gilissen 1972) points
out that the two main generic causes of pluralism are injustice and the
inefficiency of the unitary model of law. Furthermore, because normative and cultural plurality is one of the central tenets of the legal sphere in
Latin America, it is fundamental to emphasize thatalthough it is understood here as a tendency and not as a generalized phenomenonthis tenet
possesses a historical origin and permanence which cannot be ignored, given
that its structure is marked by a collection of historical macro-variables
which are only subject to profound investigation when one takes account
of its different trajectories in time.
Moving along on the present theme, one can consider a new interpretation of the nature of pluralism, that is, its specificity is not in denying
or minimizing state law, but in recognizing that state law is but one of
many legal forms that can exist in society. In this way, legal pluralism cov-
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ers not only independent and semi-autonomous practices in relation to current power, but also official/formal normative practices. Plurality covers
the coexistence of different legal orders that do or do not define the relationships between themselves. Pluralism can have as its goal, autonomous
and authentic normative practices generated by different social forces or
legal plural and complementary manifestations that are recognized, incorporated or controlled by the state (Belley 1986).
The complexity and the wide range of legal pluralist phenomena make
viable the possibilities for different classification proposals. Despite the fact
that there is no consensus among those who address the question of the
modalities of legal pluralism, just one distinction and juxtaposition projected for societies on the capitalist periphery must be underscored. It is on
this level that the duality between state legal pluralism and communal
legal pluralism is played out (E. Rodrguez 1991). The first is conceived as
that model which is recognized, permitted and controlled by the state. It
allows the presence of numerous semi-autonomous social fields with relation to a centralizing political power, with multiple legal systems vertically and hierarchically established according to degree of efficiency, attributing the greater positivity to the state legal order. In the face of this,
non-state laws represent a residual and complementary function whose
competence can be minimized or even incorporated into state legislation.
Concerning communal legal pluralism, it acts in a space formed by social
forces and collective subjects with their own identity and autonomy, subsisting independently of state control.
Finally, with respect to the objections to legal pluralism, we must
mention those raised by authors of a theoretical bent, both traditional and
innovative. Part of the argument is perceived as the ambiguous face of
legal pluralism that can reveal itself as either a progressive global strategy
or a conservative project. Therefore, if behind pluralism we find a Gurvitch
or a Proudhon on one side, on the other side, in the monism role, are aligned
thinkers such as Marx and Hegel. The relativity of these considerations
reinforces the proposal that, for Norberto Bobbio, the theoretical proposal
of pluralism can hide a revolutionary ideology inserted into an order that
contributes to the progressive liberation of individuals and groups oppressed by state power, as well as a reactionary ideology interpreted as
an episode of the disaggregation or the substitution of the state and
thereby as a symptom of an imminent and incomparable anarchy (Bobbio
1980:264-65).
In synthesis, the introduction of legal pluralism today implies not
only admitting that the theme involves complexity, ambiguity and limits,
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but above all that legal pluralism can exercise a conservative or emancipatory instrumental ideological function.
For a careful analysis of law in times of globalization and neoliberalism, see Ramos Filho (1999),
Faria (1996), and Marques Neto (1996).
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that conservative pluralism makes the organization of the masses nonviable and masks true participation, while progressive pluralism, as a democratic strategy of integration, seeks to promote and stimulate multiple participations of the popular sectors and of the new grassroots collectives.
In the same way one can differentiate the old pluralism (liberal matrix) from that which is in line with the new historical exigencies. While
liberal pluralism was atomistic, consecrating a private structure of isolated
individuals, mobilized to achieve their exclusive economic goals, the new
pluralism is characterized as integrative, which unites individuals, subjects
and organized groups around common needs (Wolkmer 1993).
As Carlos Nelson Coutinho (1990) reminds us, it deals with the creation of a pluralism of collective subjects based in a new challenge: to
construct a new hegemony that contemplates the balance between the predominance of the general will (...) without denying the pluralism of individual interests. Furthermore, the hegemony of the pluralism of collective subjects deposited at the base of a wide process of democratization,
decentralization and participation, should also rescue some of the principles of Western political culture, such as minority rights, the right to difference, and autonomy and tolerance.
Hence an emancipatory project of legal pluralismwhich is the type
of legal pluralism assumed here, the anchor of a proposal of coherent
democratic consolidation for Latin America, can only be based on a noninstrumentalist vision of law according to which social structures and their
respective actors find themselves under a permanent change of influences
and continual re-accommodation, making possible the critical reconstruction of the legal sphere towards a re-ordering of the political framework.
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need for rights. In summary, the rights objectified by the agents of a new
collective citizenry express the inter-mediation between necessity, conflicts,
and demands.
The third assumption in articulating community pluralism consists
in making viable the conditions for the implementation of a democratic
politics that addresses and at the same time reproduces a decentralized and
participatory community space.
This intention does not seem very easy in social structures with a
high degree of socio-political instability, such as the Brazilian case, since
they are contaminated to their roots by a centralizing, dependent and authoritarian tradition. It seems clear that the break with this type of societal
structure demands profound transformations in the practices, culture and
values of daily lifestyles. Beyond subversion at the level of thought, discourse and behavior, it is also important to reorder individual and collective public space, rescuing forms of human action which deal with questions of community, democratic base politics, popular participation
and control, decentralized management, local or municipal power and
council systems (Villasante 1984).
What is important in the new political order of public space, with its
respective process of consolidation of a participative base democracy, is the
discovery of a new pluralist society marked by the coexistence of conflicts
and differences, allowing another legality based on the essential needs of
its new collective subjects.
Moving on, it is fitting to highlight a fourth condition for the composition of an alternative legality: the formulation of anethic of solidarity. The
exhaustion of individualist bourgeois capitalist culture brings us to the ethical
crisis of modernity. We are, at present, living the consequences of an ethic
based on individualism, power, competition, efficiency, production, relativism, etc.
The solidarity ethic is not enamored of ontological engineering
and a priori universal judgments which are put in place in order to be
applied in lived situations; rather it translates vital conceptions which emerge
in permanent affirmation from the selfsame struggles, conflicts and interests of the new insurgent subjects.
The solidarity ethic is the anthropological ethic of liberation that
springs from the needs of the excluded segments and attempt to generate a
pedagogical practice capable of emancipating oppressed, wronged and expropriated subjects. Because it is an ethics committed to the dignity of the
other, its theoretical bases are found as much in daily social practice as in
assumptions lifted from liberation philosophy (Dussel 1996, 1998).
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the uses of law, uniting three articulated levels but with a prioritized
order. This typology will only be felt when it provokes an internal dialogue with the practitioners of law, enriching and redefining it in light of
the different branches of law (Arruda 1992:171-72).
Of course the criteria expressed by alternative regulatory practices
imply informality, decentralization and democratization of procedures; factors whichwhen well exploited and stimulatedconstitute the best medium for operationalizing the demands for access to justice and factoring in
collective conflicts over social spaces marked by constant instability and
deep social changes.
Finally, the first steps in the direction of a Latin American pluralist
and democratic society are already being perfected, such that the pedagogical role of the sociolegal critique is fundamental as a strategy for
creatingin an initial moment of paradigmatic redefinitionsthe epistemological and political ideological conditions of an effective material justice which can, in a not-so-distant horizon, express the globality of a public
space which is truly participatory, capable of finding a new hegemony, a
synthesis of general will coexisting with the plurality of individual interests in an equality based on diversities and differences.
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