Pluralisme juridique face au constitutionnalisme latino-américain : domination et colonialité

Abstract

In this paper, we suggest introducing Legal Pluralism in the context of Latin American Constitutionalism. In our analysis, we highlight the Andean controversy triggered by the 2008 Ecuador Constitution. Our chosen object of study is one of the most controversial cases (La Cocha II) judged by the Constitutional Court of Ecuador. It illustrates the debate and tension surrounding the indigenous movements’ legal-political projects and the State’s monist hermeneutic understanding, which regained legitimacy and established itself in the last decade. We depart from this conflict to examine, critically, how Legal Pluralism is being implemented in Ecuador. This is done through a case study that illustrates the jurisdictional dispute’s impasse between the indigenous authorities and the Ecuadorian judicial power. On one hand, a set of ancestral practices, international treaties, and the recently constitutionally recognized rights guarantee the indigenous peoples’ rights to enforce justice in their territories. On the other hand, in the post-constitution period, the State created mechanisms that limited the ancestral communitarian power. In this way, despite the extent to which the Constitution guaranteed the exercise of plurinationality, interculturality, and Legal Pluralism, our research suggests a (de)constituent process is taking place, or rather, a stage of (neo)colonialism perpetrated by those who should ensure the constitutional rights and the necessary transition to overcome ancient hegemonic powers and monist legal structures constituted in the coloniality.

Keywords

• coloniality
• Ecuador
• Latin American Constitutionalism
• plurinationality
• legal pluralism