ABSTRACT

The first time I heard someone mention that some of the subjects of my research might “not be angels” was in August 2010, when I attended the biannual RELAJU meeting in Lima, Peru.1 I received this word of warning from a lawyer who, in presenting his views on the contemporary situation of legal pluralism in Ecuador, argued that not every single member of a local indigenous authority was as fair, honest, and impartial as they were sometimes depicted.2

He stated that some local leaders “no son ángeles” (“are not angels”) in a presentation on the pros and cons of customary law. Basically, he was arguing that, because of an insufficient system of accountability, customary law – or at least those who administer it – can often result in biased conduct. Because of this, he argued that the recognition of customary law be as limited as possible. I partially agree with his observation, but I thoroughly disagree with the conclusion he drew from it. And so did most of the audience that was attending his presentation. The second time I heard a similar statement was in a totally different set-

ting. I was seated next to the teniente político in the remote Andean village of Zumbahua, observing a local trial. In addition to myself and the teniente político, his secretary, a police officer, the parties involved, and several dirigentes (local indigenous leaders) of neighboring communities were present in his small office. The conflict that had to be settled had to do with marital infidelity and a physical altercation between spouses.3 While persuading the parties in that local conflict to reconcile, one dirigente stated that “nadie somos santos” (literally: “none of us is a saint,” meaning that nobody is perfect). Basically he was downplaying the tensions over what was actually at stake by arguing

that making mistakes was part of being human. And so was – he pointed out – making peace following a conflict. As such he was giving expression to a fundamental value of local customary law: reconciliation. Neither I nor anyone else present disagreed with his reasoning. Although referring indirectly to the same phenomenon, it is clear that legal

pluralism does not mean the same thing to both the lawyer and the dirigente. The lawyer should be seen here as a representative of national law. In a way he was formulating Ecuador’s unofficial – but nevertheless frequently practiced – political and juridical position regarding the relationship between customary and national law: although its use is constitutionally recognized, its shortcomings can hardly be overemphasized and its actual scope is in fact severely limited.4 The first example is therefore illustrative of how the challenge of implementing formal legal pluralism in the absence of coordinating rules (harmonizing both legal systems) is often faced. For many of the parties involved (for example, scholars, jurists, politicians, and even some indigenous leaders), the debate concerning legal pluralism is fundamentally about individual rights vs. collective rights. In this view, the essential question of the debate concerns which cases customary law can be applied to, by whom, and when – within national and international law. Legal pluralism is thus understood as a jurisprudential process, and there are particular ontological assumptions which underlie such an understanding.5