ABSTRACT
The central aim of this book is to provide insight into two phenomena: the living reality of legal pluralism in Ecuador, and the contemporary relationship between the indigenous people and the state. In other words, legal pluralism will serve as an empirical lens through which Ecuador’s “multinationalism” will be examined.1 The goal of the present chapter is to explore the theoretical debates surrounding this book’s main concepts: customary law, legal pluralism, the state, and multiculturalism. In order to understand how customary law works in daily practice, one has
to take rules and processes, as well as the historical, social, and political context into consideration. These factors will be addressed in a brief literature review of customary law. Additionally, this chapter argues that it is impossible to consider customary law apart from its context (and especially apart from its relationship with national law). To fully grasp what customary law is about, one should always study it in relation to national law (that is, one has to study the situation of legal pluralism). The study of customary law and legal pluralism have both evolved over time. It will be shown that, beginning in the 1970s, debates among scholars have for the most part focused on the proper scope and boundaries of the concept of “law” and legal pluralism. Nowadays, however, the study of legal pluralism in Latin America concentrates on a combination of history and ethnography within the framework of political power structures. All of this has led to a characterization of the state as the guardian of
national law. This chapter builds on the work of those who conceptualized the state in different ways, with an emphasis on Chatterjee’s (2004) notion of a “political society.” The overview presented here will shed light on the relationship between Ecuadorian indigenous people and the state, which, in the case of the Andean highlands, can broadly be characterized as absent. Finally, this theoretical framework takes proper account of multiculturalism.
It will be shown that this concept is used in many ways. Two distinct viewpoints regarding how multiculturalism should be preserved (that is, the politics of recognition, and the politics of redistribution) will be discussed. This will be followed by a discussion of the anthropological understanding of sovereignty and the related idea of decentralization in the context of neoliberal reforms. Within the framework of a consideration of these issues, the relationship between customary law and national law is discussed in terms of both a “topdown” and “bottom-up” dynamic. It will be shown that, in implementing legal pluralism, Ecuador has not yet succeeded in finding a middle ground between a deeply rooted legal monism, on the one hand, and cultural relativism, on the other.
