Envisioning Progressive Pluralism: Customary Law and Contemporary Conflict in Bolivia

Envisioning Progressive Pluralism: Customary Law and Contemporary Conflict in Bolivia

Cybele Kotonias

Latin American Studies Honors Thesis Proposal

Department Advisor: Paul Dosh

Possible Readers: James Von Geldern, International Studies; Wendy Weber, Political Science; Patrick Schmidt, Political Science, and Olga Gonzalez, Anthropology

September 22, 2008

Introduction

Following a semester abroad in Bolivia, my honors thesis will examine the possible role of a pluralist legal regime within Bolivia. Bolivia has witnessed a heightened number of lynchings throughout the last decade– an observable phenomenon throughout much of Latin America. In its Latin American context, the term lynching refers to the extrajudicial killing of an alleged criminal by a large group of citizens. While many analysts have blamed the lynchings on increasing crime and weak rule of law, theories have also emerged pertaining to the assumed agency that lynching represents to subaltern groups. Angelina Snodgrass Godoy theorizes that lynchings are “indications of an agentive moment, an attempt by embattled communities to reassert their autonomy and agency” (Godoy 623). In Bolivia in particular, anthropologist Daniel Goldstein suggests that lynching represents “a claim to citizenship and a demand for citizens’ rights in a context of political, legal, and socioeconomic exclusion” (Goldstein 4).

As lynching is an increasingly prominent issue within Bolivia, President Evo Morales has met criticism from an audience spanning from International Human Rights Organizations to Bolivian citizens for the incorporation of justicia comunitaria (community justice) in the new Constitution. Right-wing Bolivian media sources claim that Morales has approved the lynching of various Bolivian citizens, while the Human Rights Foundation based out of New York argues that Morales is guilty of “enshrining mob rule” (“Country Report: Bolivia 2007”). Meanwhile, Morales’ government and a number of commentators have struggled to extricate the term “community justice” from a misplaced association with lynching and mob rule.

My research is not meant to take either claim to task, but rather to analyze the progressive role that legal pluralism must play within the context of a country that has struggled to incorporate andvalorize its indigenous citizens within the centralized legal system. In this thesis, legal pluralism is defined as “the existence of more than one legal system in a single political unit” (Wilson, 76). A large divide has historically existed between the rural practice of customary law and the central legal system based on Spanish law. Yet many Bolivians today are leading “multi-sited lives”; through work-based migration they have developed meaningful social and economic relations in both urban and rural contexts. This phenomenon has only further complicated the spatial limitations of the central justice system and rural customary law (von Benda-Beckmann, von Benda-Beckmann, and Griffiths). I hypothesize that an integrated national legal system incorporating and utilizing the practice of community justice will allow for heightened regulation of such community based trials, increased agency for marginalized communities, and the means to address new legal challenges arising out of urban migration.

By studying legal pluralism in Bolivia and drawing on comparative case studies in Australia and South Africa, I hope to respond to one central query: Are pluralist legal regimes an effective response to the both integrating and ‘glocalizing’ impact of globalization on societies and legal systems? The present day shows an increasing number of conflicts arising from distinct visions of justice and law at the local to global level. I believe that an in-depth look at the functionality of hybrid law in Bolivia offers the opportunity to investigate the importance of pluralist legal regimes through case study analysis.

In order to respond to my central question, I will research the following issues: Why has lynching emerged as a response to crime in Bolivian communities? Rather than representing “backwards” communities detached from social progress and modernity, communities in which lynching occurs are often “fully inserted in the globalized political economy of late modernity” as they have been forced to abandon subsistence farming to pursue jobs in the growing export sector (Godoy 632). Understanding lynching as a remnant of pre-modern customary law ignores the dramatically shifted context of Bolivian communities in which lynching has taken place. The first component of my research will focus on the impact of globalization on justice and rule of law in Bolivian communities.

The second segment of my thesis will analyze how a hybrid legal system could strengthen rule of law in Bolivia. How can case studies of legal pluralism in South Africa and Australia inform our understanding of the strengths and weaknesses of legal pluralism in Bolivia? A comparative look at how bantu law has been incorporated into the South African legal system with a strong emphasis on upholding human rights offers great insight into the development of progressive hybridized law (Wilson, 78). The incorporation of aboriginal law into the Australian legal system offers another important comparative case. In Australia, customary law has been used to respond to crises in aboriginal communities when non-aboriginal law failed, such as in cases of family violence, juvenile behavior, and alcohol related issues (Blagg, Morgan, and Haruthunian).

The third and final segment of my thesis will attempt to understand the role of legal pluralism in deeply divided societies. A prominent divide between those who identify as indigenous and those who identify as white or of European descent marks Bolivia. While historically, customary law was practiced in rural communities and disconnected largely from urban centers, the impact of globalization-induced migration has weakened such spatial divides. As customary law now constitutes a central point of conflict in Bolivia, my research will address the question: How can an integrated legal system work to ameliorate social tension and create shared social and political spaces? I do not approach a pluralist system as a cure-all, but rather plan to analyze its role in societies in conflict.

Theoretical Framework

As a framework for my thesis, I will utilize the works of Werner Menski and Paul Schiff Berman on legal pluralism. Menski theorizes that “insisting on anti-pluralist unification visions (of law) may be misguided and quite dangerous for global peace and well-being” (Menski 4). He argues for the role of legal theory in a globalized world as “cultivating respect for worldwide plurality rather than pushing for globalizing uniformity” (Menski 5). Menski’s theory offers a framework through which to understand some of the impacts of globalization on law.

Berman theorizes that “pluralism offers not only a more comprehensive, descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions and practices” (1156). Berman contends that hybrid law may often be a more plausible and effective approach than “hard-line sovereigntist” or universalist methods, and argues for the necessity of legal pluralism in “negotiating social and cultural difference” (1156). With the highest percentage of indigenous people in Latin America per its population and a struggling judicial system, Bolivia is an important country to consider. Accounting for both the integrating and diversifying forces of globalization, Berman’s theory offers a framework that can be tested and expanded upon through case studies ofSouth Africa, Australia and Bolivia.

Methodology

While abroad in Bolivia during the spring of 2008, I had the opportunity to learn diverse perspectives on justice within Bolivia. My primary experience was a seven-week homestay with a Bolivian family in Cochabamba. My family was middle-class, and I witnessed their fear of the possible impacts of the legalization of what they considered mob rule. Furthermore, I had the opportunity to live with a family in a rural community outside of Cochabamba, which demonstrated a stark contrast between the military-patrolled city streets and the virtual non-existence of official law enforcement in rural communities. Alongside this powerful personal experience, I was also exposed to the perspectives of prominent Bolivian intellectuals and politicians on the matter of legal pluralism through my association with the Universidad de San Simon in Cochabamba, where I have maintained contact with professors and program coordinators.

As a thesis emerging from an inter-disciplinary area studies program at Macalester College, my research will draw predominantly from three academic fields: political science, anthropology, and sociology.With my personal experiences in mind, I will first look at the social and political reasons for the increase in lynching in Bolivia over the past 15 years. Making use of relevant anthropological studies such as that of Daniel Goldstein on lynching in the Cochabamba valley, and Nancy Grey Postero on indigenous politics in a “post-multicultural” Bolivia, I will critically analyze the impact of globalization on social tensions and customary law in Bolivia. Next, I will apply the theories of political analysts Menski and Berman to the contemporary case studies of legal pluralism in South Africa and Australia, looking specifically at their implications for legal pluralism in the Bolivian context. Lastly, I will look at the social implications of legal pluralism and its role in creating shared social and political spaces for Bolivian citizens of diverse backgrounds.

Project Justification

A growing number of legal theorists have focused on legal pluralism and its role in international law. Yet, I have found that much of this literaturegives a broad perspective on the theoretical implications of legal pluralism and draws on few comparative case studies that analyze the most effective means of implementing and practicing legal pluralism. Furthermore, very little literature is available in English on the complex nature of legal pluralism in Bolivia, an issue of increasing importance and interest in the present day as Bolivian conflicts receive international media attention. My research is worthwhile because it will not only draw on comparative case analysis, but also add to the English literature on legal pluralism by drawing on the highly relevant and often overlooked case of Bolivia.

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