ABSTRACT
Merry (1995: 20) has written that the law not only “provides a place to contest relations of power, but also determines the terms of the contest.” And this appears to be especially true in the Ecuadorian context, in which the recognition of customary law recently has become a highly debated political issue. As such, this situation is not a whole lot different from that in other countries in the region with important indigenous populations. However, if one compares the Latin American situation with other parts of the world, like Asia and Africa, certain differences do emerge. In the former Dutch East Indies, for example, adat was applied by Dutch governmental institutions (J. Griffiths 1986; Hoekema 2003; K. von Benda-Beckmann 2001) and in colonial Ghana, local traditional leaders were given some governmental recognition by the British rulers (Lund 2008; Ubink 2008). These are but two examples in which customary law was accorded formal recognition many decades before the same phenomenon occurred in Ecuador.1 It is beyond the scope of this book to elaborate on the ins and outs of this difference, but the historic indifference (an attitude that has changed only recently) is striking indeed. This chapter provides an overview of how customary law has been treated
politically and legally over the past five centuries in Ecuador. It shows that, although the situation has varied somewhat during the five centuries since the Spanish conquest, Ecuador has a long history of de facto legal pluralism. During colonialism, a segregationist political model was employed in which the use of customary law – although not formally recognized – was to a certain extent tolerated, as long as it did not frustrate the interests of the Spanish Crown. Segregationism was replaced by an assimilationist model when Ecuador became an independent Republic in 1830, and this in turn was replaced by an integrationist model in the early 1900s. Although these distinct political
models treat customary law and its relationship with national law differently, they have in common their formal support of juridical monism, and thus a rejection of legal pluralism. It is only since 1998, in a neoliberal era that featured state-supported decentralization, that the country has constitutionally recognized the use of customary law alongside national law. Internal conflicts in the Andean region have over the centuries frequently
been resolved by indigenous authorities. Because of a relative absence of state authority, internal conflicts were typically settled within communities, or by a hacendado or other local power holder, with formal courts resorted to only on rare occasions. This is confirmed by scholarly writings related to this topic, some of which have been used as sources for this chapter. In sum, there have always been internal conflicts which one way or another have been settled by making use of distinct normative systems and different authorities. In other words, people have always made use of a situation of real legal pluralism. From that standpoint, the recent formal recognition of legal pluralism could be seen as a confirmation of what has been regular practice for centuries. However, this new situation of formal legal pluralism has given rise to new conflicts. The present chapter will attempt to provide some historical perspective in order to better appreciate how the current situation arose. When customary law was constitutionally recognized in 1998, a situation of
formal or de jure legal pluralism came into being. With this recognition, a politically and legally sensitive debate regarding the scope of customary law began. From the very start, it was unclear when, where, and which cases indigenous authorities were allowed to adjudicate. Actually, this debate on what I call “the challenge of legal pluralism” was put on the agenda at the very moment that the Constitution of 1998 was put into force. This is because it stated, while remaining rather vague on the actual scope of the recognition, that the law should develop rules which would make both legal systems compatible. Although this promise was repeated in the new Constitution of 2008 (or “the Montecristi Constitution,” named after the town in the Manabí province where the constituent assembly convened), no such coordinating rules have yet been developed. As a result, there is still no agreement on the proper scope to be granted to indigenous authorities for the administration of customary law, resulting in a situation of legal uncertainty (Simon Thomas 2012). While touching briefly on the colonial period and the “long nineteenth
century,” in which the hacienda system maintained its dominant position in the countryside while the state remained relatively absent, the first part of this chapter emphasizes the land reforms in the twentieth century because of their significance for the autonomy of rural indigenous communities in relation to customary and national law. After all, it is in the comunas (the number of which expanded after the Agrarian Reform laws in 1964 and 1973) where a cabildo is now formally allowed to adjudicate in accordance with customary law.2
Therefore, the second part of this chapter focuses on the actual period of formal legal pluralism, paying special attention to the two constitutions and to several efforts in the early 2000s to reach agreement regarding coordinating rules. This chapter’s final section is on the recent campaign, led by Pachakutik assemblywoman Lourdes Tibán, to secure agreement on coordinating rules under the Montecristi Constitution.
