Week 11 - Latin American legal systems Flashcards
(22 cards)
What is Nuevo Constitucionalismo Latinoamericano and its purpose in Latin America?
Nuevo Constitucionalismo Latinoamericano (New Latin American Constitutionalism) is a movement that began in the 1990s with a decolonial interpretation. It seeks to reclaim indigenous traditions and cultures by integrating them into constitutional systems, while keeping beneficial aspects of Western constitutionalism. Its goal is to create inclusive legal frameworks that reflect pre-colonial cultures and the diverse cultural heritage of Latin America.
Scholars have identified several distinctive and innovative features that set the region of Latin America apart from other regions. What are these?
- The incorporation of indigenous legal tradition.
- Regulation of common goods.
- Recognition and protection of the rights of nature.
What role do indigenous legal traditions play in Latin American constitutional frameworks?
Indigenous legal traditions are increasingly incorporated into national legal systems. These traditions predate colonialism and continue to influence legal reasoning and practices. They are now recognized in formal laws and court decisions.
How is the regulation of common goods treated in Latin American legal systems?
Common goods like land and water are regulated to reflect both traditional communal approaches and modern goals of equitable access, emphasizing shared stewardship over natural resources.
What is the significance of the concept of Pacha Mama in Latin American constitutional law?
Pacha Mama, especially in Ecuador and Bolivia, represents the recognition and protection of the rights of nature. It grants ecosystems intrinsic rights, redefining the relationship between humans and nature beyond property-based views.
What were the effects of the arrival of European powers during the periode of colonization of Latin America?
Colonization changed the traditional way of life in Latin America. Indigenous cultures were often forced to give their own beliefs, traditions etc. up.
In their place, colonizers introduced Western Catholic religion and values, which became dominant.
How did the Latin America economy change due to colonization?
Where land had once been shared and managed by communities, it was now divided and owned privately. The indigenous people were forced to work on the land they had lost as slaves.
How did the legal system of Latin American countries change due to colonization?
A new legal system based on a typically Western legal system replaced local customs and traditional justice. The goal of the colonizers was to make local people adopt Western ways of thinking, living and governing.
How did the legal systems of Latin American countries change after they gained independence?
Independence movements were often led by elites. Most peasants and indigenous people did not get involved in the process. As a result, the new nations were often built without fully including or recognizing the needs and rights of these communities.
Indigenous law and customs were rarely acknowledged or integrated into the official legal system. This left indigenous people largely excluded from political power and legal recognition.
What is the ‘indigenous issue’?
The indigenous issue refers to the relationship between the State and the indigenous population that lived on the continent long before colonization. The issue has had a lasting impact on how the state is formed and how it functions.
Why wasn’t the relationship between the State and the indigenous people good?
For a long time, indigenous peoples were excluded from political and legal recognition.
In 1989, the international Labour Organization passed a convention on the Rights of Indigenous Peoples. What did this change?
For the first time, many constitutions recognized a broad range of collective rights for indigenous peoples.
The passing of the Rights of the Indigenous people marked the birth of what is now called the New Latin American Constitutionalism. What is this?
This new model aims to create a plural and decolonial legal system by officially recognizing and incorporating indigenous legal traditions alongside the Western model.
The shift to the New Latin American Constitution has unfolded over three main constitutional cycles. Explain each cycle.
- First constitutional cycle (late 1980s): constitutions began recognizing multiculturalism. Basic rights related to cultural identity and limited specific rights are granted to indigenous people.
- Second constitutional cycle (1990s): pluralism is affirmed as a fundamental constitutional principle and strengthens the protection of collective indigenous rights within legal systems.
- Third constitutional cycle (2000s): this cycle takes a more determined step toward the core ideals of New Latin American Constitutionalism. Indigenous people are placed on equal footing.
How were the constitutions of Ecuador and Bolivia redefined?
Indigenous peoples weren’t merely acknowledged as different or minority cultures, they were recognized as original nations with a strong identity. Through this recognition, indigenous people were granted an equal and active role alongside other groups in the decision-making processes.
These constitutions explicitly incorporated indigenous cosmovision (a view that prioritized balance and harmony between individuals, their communities and the natural world) and indigenous legal traditions into the legal system, allowing there to be legal pluralism.
New Latin American Constitutionalism marks a break from colonial legacy by recognizing indigenous peoples as equal participants in nation-building and by rethinking the role of nature and identity in constitutional frameworks. Name seven elements that define this approach.
- Incorporation of the indigenous cosmovision. Indigenous world views, such as ‘good living’ are incorporated in constitutions.
- Plurinational state. Constitutions redefine the State as plurinational, meaning the population is no longer seen as a single homogeneous people. It acknowledges the coexistence of different people within one state.
- Equal participation. New mechanisms are introduced to guarantee the participation of indigenous people, for instance in constitutional bodies.
- Territorial organization. The plurinational state involves the establishment of entities whose jurisdiction is based on both territorial (residence in location) and personal conditions (membership of an indigenous people or community).
- Recognition of indigenous law. They are officially acknowledged and allowed to function alongside the State legal order.
- Rights of nature. Nature is recognized as a legal subject, not merely as an object of ownership.
- Caring state. The concept of the caring state replaces the idea of the welfare state. It prioritizes social and environmental justice, aiming to support the well-being of all citizens.
The caring state is built upon two necessary and interdependent pillars. What pillars are these?
- The assumption of specific duties
- Obligations related to environmental and social justice towards community members.
What is the difference between a Caring state and pluranationalism?
Unlike pluranationalism, which focusses on recognizing the diversity of communities within a state, the Caring state reflects elements of indigenous people. It lacks full formal recognition at the constitutional level. Instead, only certain aspects are acknowledged.
What are the fundamentals of a welfare state, which was replaced by the caring state following the New Latin American Constitutionalism?
The welfare state prioritizes economic freedom and ownership rights, while acknowledging the social function as a limit. It guarantees social rights but often does not view them as obligatory duties to the state.
The caring state emerges blending ancestral views with Western philosophies. Though rooted in Southern legal traditions, it is not limited by geography.
How do the Caring state and the Welfare state differ on the subject of citizenship?
The welfare state promotes sustainable development for economic growth within the capitalist model, accepting potential changes to ecosystem laws.
The caring state addresses the shortcomings of the welfare state by prioritizing social and environmental justice. It emphasizes harmony among individuals, species and ecosystems.
How do the Caring state and the Welfare state differ on the subject of diversity?
The welfare state has managed cultural diversity through different paradigms, including multiculturalism, allowing diverse cultures and legal systems to coexist in one territory. However, these cultures are often not regarded as equal.
The caring state adopts an intercultural approach, emphasizing dialogue among equals and recognizing legal pluralism and interlegality.
I. Zuloago, J.M. Díaz de Valdés, Latin America, M. Siems and P.J. Yap, The Cambridge Handbook of Comparative Law.
The researchers have delved into the evolution of private and public law in Latin America. How do the evolution of the two differ?
Private law was primarily shaped by colonial influences. After gaining independence, Latin American countries began codifying private law, heavily borrowing from the French Civil Code.
Public law in Latin America had followed a different trajectory, marked by constitutional experimentation and innovation. The region witnessed a unique constitutional movement known as the New Latin American Constitutionalism. The movement is characterized by recognition of social and economic rights, environmental protection and indigenous legal tradition.
