J. Lat. Amer. Stud.

, – Printed in the United Kingdom #  Cambridge University Press 

A Political Analysis of Legal Pluralism

in Bolivia and Colombia*

DONNA LEE VAN COTT

Abstract. In this article the author compares recent efforts in Bolivia and
Colombia to implement constitutionally mandated regimes of legal pluralism, and
identifies the most important factors affecting the practical realisation of legal
pluralism : the capacity of the political system, the legal tradition and society to
tolerate normative diversity ; the geographic isolation and cultural alienation of
indigenous communities ; the degree of internal division within indigenous
communities and movements regarding legal pluralism in general, and in specific
cases, that have arisen, and the availability of effective legal mechanisms to
indigenous communities seeking to protect this right.

Among the greatest challenges facing democratic societies today is that of

incorporating populations claiming distinct group identities and cultural
norms into a single polity governed by a constitution that reflects and
affirms the identities and norms of all citizens. During the last decade
ethnic minorities have mobilised as never before to demand recognition
of their distinct identities and to claim special constitutional rights. Many
new constitutions reflect their success.
Some of the most dramatic and unexpected achievements in the
constitutional recognition of cultural differences have occurred in Latin
America. The region’s independent states have long wrestled un-
comfortably with the persistence of partially unassimilated, ethnically
distinct populations. Approximately  per cent of Latin Americans are
considered indigenous, with proportions ranging from less than one per
cent in Brazil, to more than  per cent in Bolivia and Guatemala. For
most of their history, states pursued nation-building policies that sought
to eliminate or make invisible ethnic distinctions. Over the past decade,
however, seven – Bolivia, Colombia, Ecuador, Mexico, Nicaragua,
Paraguay and Peru – adopted or modified constitutions to recognise the
multiethnic, multicultural nature of their societies. Securing such
recognition was the result of local and national-level political mobilisation
Donna Lee Van Cott is Assistant Professor in the Department of Political Science at
the University of Tennessee.
* Research for this article was supported by a Fulbright dissertation scholarship and a
grant from the Cordell Hull Fund of the University of Tennessee, Knoxville. The
author would like to thank Jose! Antonio Lucero, Rachel Sieder and the anonymous
reviewers of this journal for helpful comments on a previous draft.
 Donna Lee Van Cott
by indigenous peoples organisations that originated in the late s" and
and peaked in the early s, when Indians throughout the Western
hemisphere organised to present an alternative reading of the th
anniversary of the arrival of Europeans in the Americas.# But this
recognition is not attributable solely to the canny mobilisation of
indigenous organisations. Improving the representation and participation
of excluded groups and codifying fundamental rights is a strategy
employed by Latin American states in the s for consolidating the
fragile legitimacy and legality of democratic institutions.$
Having secured a foothold in national psyches and constitutions,
indigenous and African–American organisations are now attempting to
put the principle of respect for diversity into practice. One barometer of
their success is the status of efforts constitutionally to incorporate the
practice of customary law – the mostly unwritten forms of dispute
resolution and social control practiced by ethnic communities or language
groups among their members. This article analyses efforts in Bolivia and
Colombia to put into practice new constitutional provisions that recognise
the jurisdiction of indigenous authorities over the administration of

" The United Nations Sub-commission on the Prevention of Discrimination and

Protection of Minorities defines indigenous peoples as follows : ‘‘ Indigenous
communities, peoples and nations are those which, having a historical continuity with
pre-invasion and pre-colonial societies that developed on their territories, considered
themselves distinct from other sectors of the societies now prevailing in those
territories, or parts of them. They form at present non-dominant sectors of society and
are determined to preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued existence as peoples,
in accordance with their own cultural patterns, social institutions and legal systems.’’
UN, Study of the Problem of Discrimination Against Indigenous Populations (New York,
), para. .
# On these movements, see H. D. Polanco, AutonomıT a regional. La autodeterminacioT n de los
pueblos indios (Me! xico, ), pp. – ; R. Stavenhagen, ‘ Challenging the Nation-
State in Latin America ’, Journal of International Affairs, vol. , no.  () ; D. L. Van
Cott (ed.), Indigenous Peoples and Democracy in Latin America (New York, ) ; P.
Wade, Race and Ethnicity in Latin America (London, ) ; and D. Yashar, ‘ Indigenous
Protest and Democracy in Latin America ’, in J. I. Domı! nguez and A. F. Lowenthal
(eds.), Constructing Democratic Governance. Latin America and the Caribbean in the ‰‰€s
(Baltimore, ).
$ On recent reforms of the state affecting indigenous peoples see, Willem Assies,
‘ Pueblos indı! genas y reforma del estado en Ame! rica Latina ’, paper prepared for the
workshop on Indigenous Peoples and Reform of the State, Amsterdam, October
–,  ; J. Dandler, ‘ Indigenous Peoples and the Rule of Law in Latin America :
Do They Have a Chance ? ’ paper prepared for the Academic Workshop on the Rule of
Law and the Underprivileged in Latin America, Kellogg Institute for International
Studies, University of Notre Dame,  ; D. Iturralde, ‘ Demandas indı! genas y
reforma legal : retos y paradojas ’, Alteridades, vol.  (), pp. – ; E. Sa! nchez,
(comp.) Derechos de los pueblos indıT genas en las constituciones de AmeT rica Latina (Bogota! ,
) ; and D. L. Van Cott, The Friendly Liquidation of the Past : The Politics of Diversity
in Latin America (Pittsburgh, ).
 Legal pluralism in Bolivia and Colombia 
justice within specified territorial units. The theoretical debate over the
compatibility of liberalism and group rights is left to others.% The article’s
approach is empirical and comparative. It identifies variables that account
for the ‘ success ’ of legal pluralism, which are defined along two
qualitative continua : the extent to which multiple legal systems are able
to operate without interference, and the extent to which conflicts among
legal systems are managed institutionally. It concludes that the success of
legal pluralism is determined by the outcome of repeated strategic
interactions among indigenous peoples’ organisations, the professional
judiciary, and state institutions. These interactions are affected by the
capacity of the political system, the legal tradition and society to tolerate
normative diversity ; the geographic isolation and cultural alienation
of indigenous communities ; the degree of internal divisions within
indigenous communities, movements on legal pluralism, in general, and
in specific cases that have arisen ; and the availability of effective
legal mechanisms to indigenous communities seeking to protect legal
rights.
Although legal pluralism has long been a concern of anthropologists
and legal scholars, it is fundamentally a political issue. But it is one that
most political scientists have ignored.& The goal of this article is to
provide a more explicitly political analysis of legal pluralism by focusing
both on interactions among political actors and on the broader political
context in which the recognition of legal pluralism takes place. The term
‘ legal pluralism ’ connotes the simultaneous existence of distinct normative
systems within a single territory, a condition usually associated with
colonial rule.' Under colonial rule, the exercise of sub-state legal systems
was commonly restricted to cultural or personal matters in which the state
was not concerned, and was tempered by the invocation of a ‘ repugnancy
clause ’ in the event that customary practices offended the sensibilities of
European judges.( Since the s, jurists have recognised that practically
all societies exhibit some aspects of legal pluralism. Many multiethnic
states in Asia, Africa and Latin America that succeeded the colonial
powers and adopted European-style legal systems continue to recognise
% For an introduction to the literature on this topic, see S. Benhabib (ed.), Democracy and
Difference : Contesting the Boundaries of the Political (Princeton, ) ; A. Gutmann (ed.),
Multiculturalism : Examining the Politics of Recognition (Princeton, ) ; W. Kymlicka,
Multicultural Citizenship (Oxford, ) ; and J. Tully, Strange Multiplicity :
Constitutionalism in an Age of Diversity (Cambridge, ).
& D. Iturralde, ‘ Movimiento indio, costumbre jurı! dica y usos de la ley ’, in R. Stavenhagen
and D. Iturralde (eds.), Entre la ley y la costumbre. El derecho consuetudinario indıT gena en
AmeT rica Latina (Me! xico, ), p. .
' B. da Sousa Santos, Estado, derecho y luchas sociales (Bogota! , ), p. .
( M. B. Hooker, Legal Pluralism : An Introduction to Colonial and Neo-colonial Laws
(Oxford, ).
 Donna Lee Van Cott
some scope for customary law, particularly for religious minorities and
geographically isolated and culturally alienated indigenous peoples. Most
contemporary cases reflect the efforts of post-colonial or multiethnic states
to accommodate the claims of sub-state groups in order to reduce inter-
ethnic conflict, as well as to serve other state aims, such as extending the
rule of law and state authority into peripheral areas. Horowitz observes
that another frequent impetus for legal change is the need to make the
legal system more ‘ authentic ’, that is to create a better fit between society
and its norms.) In many cases, achieving such authenticity involves re-
cuperating and revaluing traditional practices that enjoy greater popular
legitimacy than the edicts of the state, and that have persisted, in part, due
to the geographic vacuum of state authority in peripheral regions. All
these goals motivated legal reform in the cases discussed below.
Until the s most national legislation in Latin America did not
recognise indigenous customary law (an exception is Peru’s 
recognition of rondas campesinas [peasant patrols]). Today, in response to
claims by indigenous groups, in addition to Bolivia and Colombia, the
constitutions and\or laws of Brazil, Chile, Ecuador, Nicaragua, Paraguay
and Peru recognise some scope for indigenous customary law. Con-
stitutional recognition of this right affirms protections under International
Labor Organisation (ILO) Convention  () on the rights of
indigenous and tribal populations in independent states, which nine Latin
American countries have ratified, including Bolivia and Colombia.* Draft
international declarations on the rights of indigenous peoples are being
prepared by the United Nations and Organization of American States and
also protect the right to exercise customary law.
Comparing Colombia and Bolivia provides an opportunity to examine
constitutional language recognising how strikingly similar legal pluralism
is implemented in two distinct political contexts. The similarity in language
is due to the use of the earlier Colombian example as a model by
Bolivian government personnel. The recognition of legal pluralism in
both countries was part of comprehensive reforms undertaken in 
and , respectively, in which the legitimacy of state institutions,
particularly the judicial system, was a priority. The two cases also enable
us to explore whether legal pluralism has different implications depending
on the proportion of the population that is indigenous. At the legal and
philosophical level, there is no difference. In both countries constitution-
) D. Horowitz, ‘ The Qur’an and the Common Law : Islamic Law Reform and the
Theory of Legal Change ’, American Journal of Comparative Law, vol. XLII, nos.  & 
(), pp. –, –.
* They are Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Paraguay and Peru.
Argentina signed ILO  in  but the deposit of its ratification has been delayed.
Denmark, Fiji, Holland and Norway also have ratified ILO .
 Legal pluralism in Bolivia and Colombia 
makers sought to construct a new basis of legitimation for the state by
making the legal and political systems more inclusive and participatory.
Recognising and empowering oppressed ethnic groups suited this purpose
equally well in both cases. However, at a practical level, the positive and
negative implications of legal pluralism are magnified in the Bolivian case,
where the indigenous population constitutes a majority and the territory
where indigenous jurisdiction is recognised covers a substantial portion of
the country. Another striking difference between the two cases is the
process through which both reforms were achieved. In Colombia, two
Indians representing the country’s major indigenous organisations were
elected to the national constituent assembly in . During this cathartic
public process both played a highly visible and symbolic role by
personifying the inclusion of society’s most marginalised groups. In
Bolivia, President Sa! nchez de Lozada managed a closed process confined
to a handpicked team personally loyal to the president, which produced
legislation passed by a legislature lacking representatives of the organised
indigenous movement. The president’s team included the Aymara vice
president and anthropologists with close ties to the country’s indigenous
organisations."! Nevertheless, the new constitutions are strikingly similar
with respect to legal pluralism.
The achievement of a genuinely pluralistic legal regime is crucial to the
realisation of the new multicultural conception of the nation enshrined in
the new Bolivian and Colombian constitutions. As Colombia’s Interior
Minister observed in , the articulation of indigenous legal systems
with Colombian law is one way in which the plural nation is constructed
‘ with regard to themes like the public and the private, the scope of state
autonomy and that of indigenous peoples and territories, and the rights
and duties of citizens and of national public and indigenous authorities ’.""
For Latin America’s indigenous peoples the recuperation of customary
law is part of a long struggle to reject a ‘ neo-colonial ’ Latin American
state and to adjust the Latin American elites ’ mythical homogenous nation
to the reality of heterogeneous populations. The indigenous demand for
recognition of legal pluralism is part of a larger project to assert a
collective right to self-determination : it is one aspect of the autonomous,
collective citizenship that they seek within the state."#
Indigenous organisations struggling on behalf of this project engage in
a variety of strategic interactions. Their struggle has occurred mainly in
"! For a thorough discussion of the reform process in both countries, see D. L. Van Cott,
The Friendly Liquidation of the Past : The Politics of Diversity in Latin America (Pittsburgh,
).
"" H. Serpa ‘ Introduccio! n : Justicia, diversidad y jurisdiccio! n especial indı! gena ’, in ‘Del
olvido surgimos para traer nuevas esperanzas.’ La JurisdiccioT n especial indıT gena (Bogota! , ),
p. . Translation by the author. "# See note .
 Donna Lee Van Cott
spheres dominated by national and international legal discourses, which
shape the way indigenous organisations articulate their identities and
aspirations. As Sieder and Witchell argue, the necessity to assert claims in
ways compatible with legal discourse has resulted in the essentialisation,
reification and idealisation of indigenous customary law practices.
Indigenous leaders paint a picture of coherent, widely understood and
uncontested norms and procedures that have been passed down for
generations, systems that have operated autonomously from the state,
maintaining a cultural purity that must now be protected from any
intrusion. These legal systems are portrayed as promoting and protecting
a harmonious way of life particular to indigenous peoples."$ But in fact
this idealised vision obscures the reality of most indigenous customary
law systems in at least three ways.
First, many practices indigenous communities claim are traditional
were adopted quite recently. Clear examples included the rondas campesina
adopted by many indigenous communities in highland Peru in the s,
and the new normative structures adopted by Guatemalan Maya internally
displaced by the civil war."% Indigenous communities continually adopt
new practices as new needs arise. Although the antiquity of customary law
is often invoked to legitimise it, the authenticity of these new structures
and norms comes not from their age but, rather, from their autonomous
adoption in the absence of effective access to state justice. Secondly,
indigenous communities are not immune from the internal contestation of
culture and norms common to all human groups. Even the smallest, most
isolated indigenous communities contain power differentials and con-
flicting interests, the most obvious being those between women and
men."& Internal dissensus within indigenous communities has increased in
recent years due to patterns of urbanisation, displacement due to violence
and migration that bring Indians into closer contact with one another and
with Indians from different geographic areas and linguistic backgrounds,
as well as the growth of Protestant faiths in once-hegemonically Catholic
communities. The assertion that indigenous cultures are uniquely
characterised by harmony and consensus is a typical counter-hegemonic
"$ R. Sieder and J. Witchell, ‘ Advancing Indigenous Claims Through the Law :
Reflections on the Guatemalan Peace Process ’, in J. Cowan and R. Wilson (eds.),
Culture and Rights (forthcoming) ; D. Iturralde, ‘ Usos de la Ley y usos de la costumbre :
La reivindicacio! n del derecho indı! gena y la modernizacio! n del Estado ’, Alberto Wray
et al., Derecho, pueblos indıT genas y reforma del Estado (Quito, ), p. .
"% On the former, see W. Ardito, ‘ The Right to Self-Regulation. Legal Pluralism and
Human Rights in Peru ’, Journal of Legal Pluralism, vol.  (), pp. – ; on the latter
see R. Sieder, Customary Law and Democratic Transition in Guatemala (London, ).
"& Ardito, ‘ The Right to Self-Regulation ’, p.  ; R. Sieder, ‘ Customary Law and Local
Power in Guatemala ’, in R. Sieder (ed.), Guatemala after the Peace Accords (London,
), p. .
 Legal pluralism in Bolivia and Colombia 
strategy of dominated groups, and should be examined critically in each
case. As Sieder argues, perpetuating the myth that customary law is
characterised by tradition and consensus runs the risk of ‘ freezing ’
methods and customs particular to certain historical circumstances and of
reifying traditions which may no longer be applied in practice, or which
may not be shared by the entire group."' Third, very few extant
indigenous legal systems are autonomous, self-contained or ‘ culturally
pure ’. The vast majority developed in opposition to state law in a
‘ dynamic, asymmetrical relationship ’."( This is even more the case in
Latin America, as compared to other colonised regions, because the
Spanish were more disposed to modify the internal structure of indigenous
communities and to promote the eventual disappearance of Indians as a
distinct group, rather than to sign treaties with them or to treat them as
external to the nation. Thus, the challenge of articulating indigenous
customary law to state systems, required by the new constitutional
recognitions of customary law, is posed incorrectly, since this articulation
has been negotiated and renegotiated in practice since colonial times in
response to changing political conditions. The challenge now is to codify
this relationship formally to represent the transformation in indigenous-
state relations implied by the new constitutions.

Colombia
An estimated . per cent of Colombia’s population of almost  million
is indigenous ;  per cent live on indigenous resguardos covering about
one-quarter of the national territory.") The widely dispersed indigenous
population is comprised of  distinct ethnic groups speaking 
languages. Contemporary indigenous organisations formed in the s,
mainly to struggle for the recuperation of ancestral lands. Nevertheless, a
set of cultural rights including language, educational and customary law
has long been part of the indigenous agenda.
The administration of Ce! sar Gaviria, which presided over the
constituent assembly in , accorded implementation of the judicial
reform its highest priority. Judicial reform was viewed as its ultimate
guarantee."* Among the first measures implemented was the accioT n de tutela
(writ of protection), the citizen’s primary defence against the violation of
fundamental constitutional rights. The most important new judicial
"' Sieder, Customary Law and Democratic Transition, pp. –. "( Ibid., p. .
") Paraphrasing from Decree  (), an indigenous resguardo is a legal and socio-
political institution that corresponds to an indigenous community and a specific
territory. Under Colombian law, the internal affairs of the resguardo are governed by the
community according to its customs and traditions.
"* Interview, Fernando Carrillo, Washington,  Sept. .
 Donna Lee Van Cott
institution established was the Constitutional Court which, already in its
first year, gained public prestige by defending the rights of the common
citizen with respect to virtually all of the constitution’s fundamental
rights. Among the Court’s most innovative rulings are those concerning
indigenous rights, including three rulings with respect to customary law,
pursuant to Article  of the  Constitution on Special Indigenous
Jurisdiction, which reads :
The authorities among the native peoples may exercise judicial functions within
their territorial areas in accordance with their own rules and procedures, which
must not be contrary to the Constitution and laws of the Republic. The law shall
establish the forms of coordination of this special jurisdiction with the national
judicial system (translation by the author).
Other constitutional provisions establishing anomalous indigenous
territories and recognising the official status of indigenous traditional
authorities as public authorities with territorial jurisdiction (Articles
–) provide the political and territorial context for the exercise of
this right.
In order to prepare Colombian courts for the challenge of adjudicating
cases involving indigenous customary law, the Gaviria government
commissioned studies of the legal systems of  indigenous language
groups. Anthropologists criticised the project for imposing Western,
positivist categories and concepts onto more flexible, oral traditions that
defy such categorisation, and for separating the practice of customary law
from the fabric of indigenous society.#! Positive and customary law, they
argued, do not even share the same purpose : while positive law seeks to
punish the guilty, customary law generally seeks if possible to reconcile
parties in order to conserve the harmony of the group. The overriding
value of group harmony often reaches the extreme of expelling or
executing community members whose behaviour is deemed sufficiently
disruptive of group harmony, usually where prior efforts to negotiate a
solution or enforce conformity to group norms have failed. In such cases
customary law may trample on principles common to a Western, liberal
tradition of positive law with respect to minority rights and may even
sanction behaviour that is not deemed unlawful by the state. This
controversy underscores a fundamental debate within juridical anthro-
pology over whether it is possible or desirable to attempt to analyse other
societies in terms of the concepts of the social scientists doing the analysis.
Western jurists tend both to distort indigenous law and to deny the legal
character of indigenous culture and practices to the extent that these do
not exhibit Western-style legal artifacts – such as courts, written texts and
#! Interview, Esther Sa! nchez, Bogota! ,  Feb. .
 Legal pluralism in Bolivia and Colombia 
professional judges. Some anthropologists err in the other direction by
incorporating under the category of ‘ law ’ all behaviours, structures and
norms connected to practices of social control which are not properly
assimilable to a western definition of law.#" The Colombian project
directors defended their methodology as the most effective means of
presenting information about indigenous administration of justice to the
judges that must rely on them in making important judicial decisions and,
thereby, facilitating coordination of the indigenous and positive systems.##
In his introduction to one of the studies, Carlos Ce! sar Perafa! n identified
difficulties in the coordination of indigenous and national law. First,
whereas the national system is highly segmented and specialised,
indigenous systems lack these distinctions and even lack separation
between forms of social control, self-government and the administration
of justice. Secondly, national law is applied to individuals, whereas
indigenous communities generally apply sanctions to the unit of society of
which the offender is a member. Entire families may feel the weight of
fines or even be expelled from the community. Thirdly, in indigenous
communities punishments are not necessarily pre-existing for each crime,
as in the national system. An appropriate punishment is designed for each
case, and is often negotiated with the social group of the victim. Fourthly,
in indigenous communities, corporal punishment, forced labour and loss
of community rights are common, while imprisonment is rare. Most
seriously, many indigenous communities punish homicide and witchcraft
with the death penalty, which is illegal in Colombia.#$ These normative
and procedural disparities posed difficult problems for the creation of
implementing legislation with broad-based support.
In fact, the implementing legislation required by Article  was never
passed because a consensus could not be reached on the meaning of
‘ coordination ’. The subordination of indigenous special jurisdiction to
the Colombian constitution and legislation would appear to imply that
#" R. Stavenhagen, ‘ Derecho consuetudinario indı! gena en Ame! rica Latina ’, in R.
Stavenhagen and D. Iturralde (eds.), Entre la ley y la costumbre. El derecho consuetudinario
indıT gena en AmeT rica Latina (Me! xico, ), p.  ; Santos, Estado, derecho y luchas sociales
(Bogota! , ), pp. –.
## C. Perafa! n et al., Sistemas jurıT dicos indıT genas : Pueblos Awa, Cocama, Maku, Uioto, U’wa y
Yukpa (Bogota! , ), p. .
#$ C. Perafa! n, Sistemas JurıT dicos PaT ez, Kogi, WayuT u y Tule (Bogota! , ), pp. –,  ;
Perafa! n, et al., Sistemas JurıT dicos Tukano, Embera, Sikuani y Guambiano (Bogota! , ),
p.  ; M. Va! squez, ‘ Antecedentes sobre la aplicacio! n de la jurisdiccio! n Especial
Indı! gena ’, in ‘ Del olvido surgimos para traer nuevas esperanzas ’, pp. –. In comparison
to national sentences for comparable offenses, indigenous sentences appear to be
shorter. For example, Perafa! n gives the example of the different penalties for murder :
 years of prison, under Colombian law, compared to six years of hard labour in other
resguardos under Pa! ez law, although in the most aggravated cases the death penalty may
be applied.
 Donna Lee Van Cott
conflicting elements in customary law are to be superseded. As Dander
observes, this limitation on customary law is typical of language in most
Latin American constitutions, which ‘ tends to downgrade the role of
traditional norms or relegate them to further study, special legislation or
other ‘‘ future ’’ measures which are not easily forthcoming ’.#% Yet, no less
an authority than the former chief magistrate of the Colombia
Constitutional Court, Carlos Gaviria Dı! az, argued that to subject
indigenous jurisdiction to this limit would be absurd, since it would
nullify the meaning of autonomy under Article  by implying that
Indians must conform to all the procedures of the Colombian penal code,
including the creation of pre-existing written laws.#&
The Organizacio! n Nacional Indı! gena de Colombia (ONIC) presented
its own legislative proposal to coordinate indigenous and national justice
administration shortly after the close of the constituent assembly in .
The ONIC plan failed to address the question of coordination between the
two systems, stipulating that this would be worked out later in
consultation with indigenous communities.#' The proposal envisaged
indigenous jurisdiction as mandatory within the territorial jurisdiction of
indigenous authorities, unless the authorities elect to ‘ delegate ’ their
authority. Jurisdiction over Indians committing crimes outside their
community falls to the national justice system, which would be required
to take the culture of the defendant into account in determining guilt and
sentencing.#( ONIC also called on the government formally to recognise
zonal and regional indigenous organisations as the courts of second
instance in cases where indigenous community justice is appealed,
recognising what had already become the practice in many communities.#)
This practice exacerbates the conflict when there are intra- or inter-ethnic
antagonisms within the organisations, (as occurred in the case of the
murder of the mayor of Jambalo! , discussed below).
In early , the Justice Ministry offered its own draft legislation. In
response to harsh criticism from anthropologists and legal experts, the

#% J. Dandler, ‘ Indigenous Peoples and the Rule of Law in Latin America ’, pp. –.
#& C. Gaviria Diaz, ‘ Alcances, contenidos y limitaciones de la Jurisdiccio! n Especial
Indı! gena ’, in ‘ Del olvido surgimos para traer nuevas esperanzas ’, p. .
#' In Perafa! n’s opinion, the project confused territorial and personal jurisdiction while
referring substantive and procedural questions with respect to the development of
indigenous jurisidiction to written legislation, notwithstanding the fact that the
constitution had not called for legislation developing indigenous jurisdiction, apart
from the problem of coordination with the national judicial system. Perafa! n, Sistemas
JurıT dicos PaT ez, Kogi, WayuT u y Tule, p. .
#( Jurisdiccio! n Indı! gena, Co! digo de Procedimiento Penal, Re! gimen Transitorio, Propuesta
presentada por la ONIC a la Comisio! n Legislativa (Congresito), .
#) This is also the case in some provinces of Peru, where rondas campesinas have formed
federations that act as appellate bodies. Ardito, ‘ The Right to Self-Regulation ’, p. .
 Legal pluralism in Bolivia and Colombia 
Ministry declined to present the proposal to congress.#* No subsequent
attempt has been made to legislate Article . According to Perafa! n, a
consensus exists between the government and indigenous organisations
that there should be more study of indigenous justice systems and more
reflection on the possible ways to coordinate with the ordinary justice
system.$!
In the absence of implementing legislation, the Constitutional Court
has ruled on the constitutional limitations on indigenous jurisdiction.
This was in response to three tutelas presented by indigenous defendants
claiming that their fundamental constitutional rights had been violated by
indigenous justice. (It is actually more often the victim’s family that tries
to move jurisdiction to Colombian courts because indigenous sentences
usually are deemed more lenient than those of the national system.)$" In
so doing the Court relied on the  Constitution as well as ILO
Convention . In decision T- (), the Court began developing a
standard for implementing Article . First, it ruled that cultural
traditions are to be respected, depending on the court’s judgment with
respect to the extent that those traditions have been preserved. That is, the
more contact an indigenous community has had with Western culture, the
less weight may be given to its cultural traditions. The Peruvian Criminal
Code includes the principle, exempting Indians from criminal liability in
proportion to the extent that the norms violated are culturally alien to
them.$# Secondly, the decisions and sanctions imposed by indigenous
tribunals must not violate fundamental constitutional or international
human rights. Finally, the Court established the supremacy of indigenous
customary law over ordinary civil laws that conflict with cultural norms,
and over legislation that does not protect a constitutional right of the
same rank as the right to cultural and ethnic diversity.$$

#* In a memorandum to the Interior Minister, Indigenous Affairs Office director Luis

Jose! Azca! rate identified problems with the proposal. First, the proposal’s stipulation
of causes for which indigenous legal authorities may be removed by a new state
institution that polices the legal profession interfere with indigenous communities’
constitutional right to autonomy in choosing their own authorities. Some authorities
exercising judicial functions hold permanent or hereditary office and are not
removable. Secondly, the project includes Western legal concepts that are not
applicable to indigenous justice system, including the idea that an authority’s ruling
might be revocable by some outside higher authority. Finally, the project allows
Colombian judges to determine who is indigenous, a violation of ILO Convention .
Memorandum from Luis Jose! Azca! rate to Humberto de la Calle, ‘ Comentarios al
Proyecto Preliminar de Ley Sobre Organizacio! n de la Jurisdiccio! n Especial Indı! gena,
Elaborado por el Ministerio de Justicia ’,  February .
$! Perafa! n, Sistemas JurıT dicos PaT ez, Kogi, WayuT u y Tule, p. . $" Ibid., p. .
$# Ardito, ‘ The Right to Self-Regulation ’, p. .
$$ Cepeda, ‘ Democracy, State and Society in the Colombian Constitution : The Role of
the Constitutional Court ’, unpublished manuscript (), p. , n. .
 Donna Lee Van Cott
The Court further defined the scope of indigenous special jurisdiction
in a  ruling on a claim brought by an Embera-Chamı! Indian that his
cabildo (a form of community government imposed on Colombian Indians
by the Spanish crown and later adopted and ‘ indigenised ’ by indigenous
cultures) had violated his right to due process,$% ruling that the standard
for interpreting indigenous jurisdiction must be ‘ the maximum autonomy
for the indigenous community and the minimisation of restrictions to
those which are necessary to safeguard interests of superior constitutional
rank ’.$& Restrictions on the right to autonomy must protect a more
important interest than that of cultural diversity (i.e. national security, the
right to life, prohibition of slavery and torture) and must represent the
manner of protecting that right that is least destructive to indigenous
autonomy. As the minimum basis for ‘ intercultural dialogue ’ the Court
offered the limitation of indigenous autonomy by the right to life and
freedom from torture and slavery, arguing that indigenous cultures in
Colombia do not practice torture or slavery, but do sanction murder.
According to these criteria, the defendant did not have a right to ‘ due
process ’, as that term is understood in Western law, but only to the
legitimate procedures used by his community in similar cases. However,
the Court did take issue with the decision of the cabildo to condemn the
claimant to a Colombian jail, since this is not a traditional sanction of this
community. While acknowledging that cultures are dynamic and that
sanctions might change over time, the Court admonished indigenous
authorities not to act arbitrarily but, rather, to follow custom and
tradition. The Court offered the cabildo the alternative of either retrying
the case and imposing a more traditional sanction, or of remanding the
case to the Colombian courts.
The decision is also noteworthy for its defense of the cepo, a form of
corporal punishment common to indigenous communities that was
imported from Spanish colonial law. A number of the punishments used
today by indigenous communities are derived from Spanish colonial rule,
but indigenous authorities insist that these have become part of their own
‘ authentic ’ culture, as most cultures continuously borrow and adapt
practices from cultures with which they have contact. As Horowitz argues

$% The cabildo found the defendant, who had escaped from captivity during the
investigation, guilty of murder. Cabildo authorities had initially condemned the
defendant to eight years in prison, but subsequently lengthened the term to  years
in response to the defendant’s flight and his refusal to submit to their authority. A
municipal court granted the tutela, arguing that the defendant was not allowed to
defend himself, since the cabildo decided the case while he was in the municipal jail ; that
there had been no precedent of the cabildo ruling on a case of homicide ; and that the
judges in the case were biased because they were relatives of the murder victim.
$& Tutela-\, p. .
 Legal pluralism in Bolivia and Colombia 
based on his study of contemporary Malaysian legal reform, authenticity
need not be derived from practices or norms considered ‘ indigenous ’.$'
The Court argued that the cepo, although painful, does no permanent
damage to the offender, and is used for a brief duration. As such, it does
not constitute cruel or inhumane treatment. Finally, the Court exempted
indigenous customary law from the Western expectation that pre-
established sanctions would be meted out in similar cases. Nevertheless,
as Magistrate Carlos Gaviria ruled, this does not imply :
an opening for absolute arbitrariness, in that authorities are necessarily obligated
to act in conformance with what has been done in the past, with a basis in the
traditions that serve to sustain social cohesion. On the other hand, this
requirement may not be extended to the point of holding traditional norms
completely static, inasmuch as all cultures are essentially dynamic, even though
the weight of tradition may be strong.
A  decision (T-) extended the territorial scope of indigenous
jurisdiction beyond indigenous territories to a ‘ personal jurisdiction ’ in
cases where a judge deems the cultural alienation of an indigenous
defendant to warrant it, although in the specific case brought by a Pa! ez
Indian, the Court ruled that ordinary jurisdiction was appropriate.
The issue of special indigenous jurisdiction gained national attention in
, when a third indigenous defendant, Francisco Gembuel, a
Guambiano Indian living in a Pa! ez community, filed a tutela against the
cabildo of Jambalo! , Cauca. The Pa! ez are the largest (approximately ,
individuals) and politically most dominant indigenous group in the
southwestern department of Cauca, the area of greatest indigenous
concentration in the country and the origin of the national indigenous
movement. It is an area of intense rural land conflict where several
guerrilla organisations maintain active fronts and vie with drug traffickers,
paramilitary organisations, and public authorities for control over the
legitimate means of force. In this case a conflict had erupted between the
cabildo and seven indigenous defendants banished from the community,
stripped of their political rights as Indians, and sentenced to varying
amounts of lashes with a leather whip (fuete). The sentence, announced by
cabildo authorities on  December , followed the defendants’
conviction as ‘ intellectual authors ’ of the assassination of the town’s
indigenous mayor, Marden Betancur. Local guerrillas actually claimed
responsibility for the murder ; the indigenous defendants were convicted
of publicly linking Betancur to the paramilitaries and, thus, inspiring an
indigenous sector of the Eje! rcito de Liberacio! n Nacional (ELN) guerrillas
to kill him. Gembuel’s supporters argue that the cabildo’s ruling violated
Pa! ez norms of procedure – a claim sustained by a confidential mem-
$' Horowitz, ‘ The Qur’an and the Common Law ’, p. .
 Donna Lee Van Cott
orandum from indigenous law expert Perafa! n, in which he argued that
there is no evidence of intellectual authorship, but only of ‘ tardecer ’ – a
concept in Pa! ez law that attributes guilt to a prior act that may have
inspired a later outcome, although no causal link can be proven.$(
Moreover, in Pa! ez law the expulsion of a community member is never
applied as a punishment for the first offence, as it was applied against
Gembuel and his associates. A lower court ruled that the cabildo had
denied the defendants the opportunity to defend themselves, that the
judges in the case were biased, that the whipping constituted torture and,
thus, was illegal under international law, which has constitutional rank in
Colombia. A new investigation and trial were ordered. Following an
appeal by the Pa! ez Cabildo Association of the North, a higher court
affirmed the ruling, observing that corporal punishment, even if it did no
permanent physical harm, violated the defendants’ fundamental con-
stitutional rights.
The case generated international controversy when Amnesty In-
ternational accused the cabildo of condoning torture. It became con-
troversial within the indigenous movement as well, particularly in the
Cauca, since the murdered mayor and Gembuel belonged to rival political
factions of the Consejo Regional Indı! gena del Cauca (CRIC) and had
recently been engaged in a close electoral battle for the mayorship of
Jambalo! . The then-president of the CRIC, Pa! ez leader Jesu! s Pin4 acue! ,
publicly took the side of his political constituency in the cabildo against
that of his rivals, disobeying the decision taken by the executive board of
the CRIC (and the traditional practice of the organisation) to remain
neutral and seek reconciliation in such cases. Gembuel and his followers
claimed they were being persecuted because they are political rivals of the
cabildo leadership and that Pin4 acue! exceeded his authority by becoming
involved in the capture and judgment of the accused. They accused
Pin4 acue! , a former candidate for vice president and senator, of using the
issue to gain national media attention. In fact, Pin4 acue! was elected to the
national senate in  with a level of electoral support that exceeded that
of any prior indigenous candidate for national office. Ironically, in the
summer of  Pin4 acue! found himself fighting a cabildo sentence of more
than  lashes with the fuete as punishment for having announced his
support for Liberal Party candidate Horacio Serpa in the  presidential
run-off without the approval of his political organisation or the Pa! ez leader-
ship. After negotiating with the cabildo, the sentence was converted to a
ceremonial dunking in a pond in Tierradentro.
On  October , the Constitutional Court upheld the cabildo’s
$( Memorandum from Carlos Ce! sar Perafa! n to Jesu! s E. Pin4 acue! , dated  March ,
subject : ‘ Concepto Sentencia  Cabildo de Jambalo! ’.
 Legal pluralism in Bolivia and Colombia 
determination of guilt and sentencing (T-\). In his decision,
Magistrate Carlos Gaviria Dı! az concurred with the Pa! ez Cabildo
Association of the North that the intention of the whipping is not to cause
excessive suffering but, rather, to represent the ritual purification of the
offender and the restoration of harmony to the community. The extent of
physical suffering was ruled insufficient to constitute torture (which would
be to violate international human rights law) – an affirmation of the
Court’s defense of corporal punishment in Tutela-\. Gaviria Dı! az
concluded with the observation that only a high degree of autonomy
would ensure cultural survival.
The Jambalo! decision strengthened the autonomy of indigenous
jurisdiction beyond the Court’s  standard. Not only were corporal
punishment and expulsion ruled constitutional, the Court in the Jambalo!
case applied its decision to a community whose level of cultural
assimilation is high relative to more isolated, less educated communities.
This would appear to lower the burden of proving cultural ‘ purity ’ on the
part of indigenous authorities. The decision also contributes to the
inconsistencies demonstrated by the Constitutional Court in developing
and applying the constitution’s ethnic rights regime – inconsistencies and
contradictions that the magistrates themselves admit, and which reflect
their lack of experience with the issues and categories presented by the
constitution with respect to ethnic rights, the internal normative
contradictions of the constitution itself, as well as the differing
philosophical tendencies within the Court.$) The Court has fluctuated
between a vision that seeks a consensus on minimal universal norms and
the restriction of the exercise of indigenous jurisdiction to a sphere of
universally accepted rights, and a vision that recognises an intangible
sphere of ethnic diversity whose integral nature precludes restriction.
According to ex-Magistrate Ciro Angarita, this reflects a division within
the Court between those who :
absolutely reject the possibility that indigenous ‘usos y costumbres ’ can be
considered sources of law … [and] another, which accepts, on the contrary, that
respect for this alternative source of law – to the extent that it is not contrary to
the Constitution and the law – constitutes an expression of the ethnic and cultural
diversity of the Colombian Nation and, as such, has a firm but conditional pretext
in our [normative] system.$*
$) C. Angarita, ‘ Constitucio! n polı! tica, jurisdiccio! n especial indı! gena y autonomı! a
territorial ’, in ‘ Del Olvido surgimos para traer nuevas esperanzas ’, pp. – ; Gaviria Dı! az,
‘ Alcances, contenidos y limitaciones ’, p.  ; L. S. Mosquera de Meneses, ‘ Conflicto
entre la JEI y la jurisdiccio! n ordinaria ’, in ‘ Del olvido surgimos para traer nuevas
esperanzas ’, p.  ; Santos, ‘ Pluralismo jurı! dico y Jurisdiccio! n Especial Indı! gena ’, in
‘ Del olvido surgimos para traer nuevas esperanzas ’, p. .
$* Translation by the author. C. Angarita, ‘ Constitucio! n polı! tica, jurisdiccio! n especial
indı! gena y autonomı! a territorial ’, in ‘ Del olvido Surgimos para traer nuevas esperanzas ’,
 Donna Lee Van Cott
The larger impact of the Jambalo! dispute is the alarm it generated
within the indigenous community over the intrusion of the state in what
were considered to be internal indigenous affairs, and the negative image
of Indians, who were portrayed in the press as violators of human rights
who may not be capable of managing the jurisdictional powers recognised
by the  Constitution. At a March  conference on indigenous
special jurisdiction, among the most controversial issues was whether any
Colombian court has jurisdiction to review the decisions of autonomous
indigenous cabildos, and whether indigenous jurisdiction should be
restricted by some universal conception of human rights, as manifest in
international law. The latter, ‘ total-autonomy ’ position puts indigenous
organisations in the ambiguous position of rejecting the control of a
constitution on which their own elected representatives left such an
indelible mark, a constitution that recognises indigenous authorities as
legitimate public authorities and, therefore, part of the Colombian state.
It also puts indigenous organisations in the position of rejecting
international human rights law, while at the same time using international
human rights conventions to argue for expanding indigenous rights in
national law. The human rights limitation is a serious concern for states
throughout the region, since some indigenous cultures are known to have
practices that offend Western sensibilities. The most common of these is
the use of physical punishment or death as a sanction, but there are also
cases where the community practice is to kill or abandon infant twins or
babies born handicapped, female or to large families, as well as old or very
sick people, because they are considered to be a burden on the community.
Another community conflict concerns the practice of older indigenous
men taking wives at the age of first menstruation, which countries such
as Peru prosecute as statutory rape.%!
A  decision (SU-) further developed Article . It required the
Court to balance two fundamental rights of equal rank : cultural diversity
and religious freedom. In this case, traditional Ika authorities had
imposed physical punishments on evangelical protestant Indians for
rejecting traditional beliefs and proselytising within the community. In
this theocratic community, spiritual deviation violates community law.

p. . See also Angarita, ‘ Colombia : Indı! genas y Constitucio! n de ,’ in Seminario
Internacional de AdministracioT n de Justicia y Pueblos IndıT genas (La Paz, –); E. Sa! nchez,
‘ Conflicto entre la JEI y jurisdiccio! n ordinaria ’, in ‘ Del olvido surgimos para traer nuevas
esperanzas ’, pp. –.
%! Ardito, ‘ The Right to Self-Regulation ’, p.  ; J. Aroca, ‘ El papel de la justicia en la
resolucio! n de conflictos multie! tnicos : El caso peruano ’, unpublished manuscript,
, p. .
 Legal pluralism in Bolivia and Colombia 
The Court ruled that Ika authorities must respect the right of community
members to hold different religious beliefs, but it required the dissenters
to restrict religious activities such as proselytisation, and to locate the
Pentacostal church outside the borders of the community.
Despite the problems discussed above, the Colombian case provides the
most ambitious attempt of any Latin American state to implement legal
pluralism. The singularity of the Colombian effort may be attributed both
to the fact that its constitutional model of indigenous rights is among the
most comprehensive and progressive to date, as well as to the fact that its
indigenous population is among the smallest in proportion to its total
population, presenting a more modest threat to traditional views of
national identity and the interests of rural power brokers. Perhaps this
explains why Costa Rica, whose indigenous population is less than one
percent of the total, is second to Colombia in jurisprudence favouring
indigenous peoples’ rights. Costa Rica’s Supreme Court has decided more
than five cases concerning indigenous constitutional rights since ,
mostly in favor of indigenous organisations.%"
Other factors also may be important. Colombian Indians developed a
tradition in the nineteenth century of using the legal system to defend
rights and of taking legal petitions to every possible channel of redress
of grievances within the state. They have enjoyed numerous successes,
blocking or modifying laws detrimental to their interests and defending
colonial-era privileges.%# They enjoy the support of numerous human
rights organisations with experience in arguing rights cases before national
and international fora. Many Colombian Indians choose law as a profession
or field of study – such as Senator Francisco Rojas Birry, who served in the
 constituent assembly. Indians have taken advantage of a culture that
is particularly litigious and in which judges have traditionally played an
important role in conflict resolution.%$
Colombia’s constitutional tradition is also unusual. Unlike most Latin
American countries, Colombia retained colonial-era institutions with
respect to collective rights for Indians and other corporate actors in its
constitution and laws into the s. Colombian jurisprudence has a
tradition of recognising the source of indigenous collective rights –

%" Although Costa Rica’s constitution is silent on indigenous rights, the country has
signed ILO Convention , which has the rank of constitutional law. Organizacio! n
Internacional del Trabajo, ‘ Pueblos Indı! genas, Sentencias, Fallos y Opiniones
consultivas, Costa Rica, Cinco sentencias de la sala constitucional relacionadas con los
derechos de los pueblos indı! genas ’.
%# R. Rolda! n, ‘ Los convenios de la OIT y los derechos territoriales indı! genas, en las
polı! ticas de gobierno y en la administracio! n de justicia en Colombia ’, in Seminario
Internacional de AdministracioT n de Justicia y Pueblos IndıT genas (La Paz, ), pp. –.
%$ Interview, Manuel Jose! Cepeda, Fribourg, Switzerland,  April .
 Donna Lee Van Cott
particularly territorial rights – in the existence of indigenous peoples prior
to the formation of the state, a tradition based in colonial Indian law.
Colombian jurists have a longstanding tradition of recognising the duty
of the state to protect indigenous communities. There is no other country
in the region with such a long history of jurisprudence reflecting this
commitment. The work of jurists is supported by a strong tradition of
scholarly work on indigenous peoples among Colombian social scientists,
which has generated a place of respect for indigenous cultures within
Colombian society, despite their small proportion of the population.%%
Colombia also traditionally has supported international human rights
conventions, particularly with respect to the rights of minorities. It was
among the most active participants in the debate on ILO Convention ,
in which it pushed for a broad recognition of autonomy for indigenous
peoples.
Additional explanations for the singularity of the Colombian case are
the exceptionality of the country’s professional judiciary and its unusual
tradition of judicial activism. Colombian Supreme Court magistrates
exercised judicial review in the nineteenth century, a practice that increased
after . Colombians became habituated to the judiciary’s involvement
in important political issues. The Constitutional Court has drawn its
magistrates from the ranks of the country’s most prestigious law
professors and most experienced Supreme Court magistrates. Like other
Colombian judges they are paid good salaries : Constitutional Court
magistrates have among the highest salaries in the public sector, earning
the same as the president and cabinet ministers.%&

Bolivia
Bolivia’s indigenous population comprises  per cent of the total
population of about eight million, the largest proportion in South
America. The largest indigenous group is Quechua (about  per cent of
Bolivians), followed by the Aymara (about  per cent). Highland
indigenous organisations are descendants of peasant unions formed by the
Movimiento Nacional Revolucionario (MNR) party after the 
revolution to control the indigenous population. These organisations
began to assert their independence in the s when the Banzer military
government imposed economic policies less favorable to their interests; in

%% F. Correa, ‘ El indı! gena ante el Estado Colombiano ’, in E. Sa! nchez (ed.), AntropologıT a
JurıT dica. Normas formales—costumbres legales (Bogota! , ), pp. – ; Rolda! n, ‘ Los
Convenios de la OIT ’, pp. –.
%& Interview, Manuel Jose! Cepeda,  April . Cepeda estimates that Constitutional
Court magistrates earn approximately US$, per month.
 Legal pluralism in Bolivia and Colombia 
 peasant organisations formed an independent confederation
(CSUTCB) to unite the campesino contingent within Bolivia’s militant
labour movement. In the late s and early s, as the coherence and
power of the labour movement declined rapidly, traditional ayllu
organisations,%' which had been overshadowed politically by the campesino
federations, reasserted their authority and established large federations
that now vie for the allegiance of the highland indigenous population.
Organising among the lowland population began to gain momentum after
, reaching national attention with a massive march from the lowlands
to La Paz in . As in Colombia, decades of grassroots mobilisation
enabled indigenous organisations to assert constitutional claims during
the – reforms.
Unlike the Colombian constitution, replaced in toto via a constituent
assembly, the  Bolivian Constitution was altered through a process of
piecemeal reforms, beginning in the administration of Jaime Paz Zamora
in , and extending through the administration of Gonzalo Sa! nchez de
Lozada (–). The bulk of Bolivia’s new constitutional regime for
indigenous rights is contained in Article , which was adapted from the
 Colombian Constitution. The relevant language from Article 
reads :
The natural authorities of the indigenous and campesino communities may
exercise functions of administration and application of their own norms as an
alternative solution in conflicts, in conformity with their customs and procedures,
always providing that they are not contrary to the Constitution and the laws. The
law will establish the coordination of this special jurisdiction with the judicial
power (translation by the author).
In Colombia, President Gaviria had prioritised the implementation of
judicial reform. In Bolivia, President Sa! nchez de Lozada’s Justice
Ministry prepared a comprehensive set of laws to modernise the judicial
system, but few of the laws were sent to congress, owing to the greater
priority placed by Sa! nchez de Lozada on other aspects of the constitutional
reform and his efforts to diminish the growing prestige and popularity of
his able Justice Minister, whom he may have perceived as a political rival.
The implementation of Bolivia’s  constitutional reforms with respect
to the judiciary also fell victim to a counter-reform drive by traditional
politicians within the governing MNR party, who resisted relinquishing
%' An ayllu is an Andean form of community organization of pre-colombian origin. It is
territorially discontinuous in order to take advantage of the diverse ecological zones in
the Andes, enabling a community to produce a variety of agricultural crops while
raising animals suited to higher elevations. There are approximately  ayllus in
Bolivia’s central highlands. X. Izko, ‘ Etnopolı! tica y costumbre en los andes
bolivianos ’, in A. Wray et al., Derecho, pueblos indıT genas reforma del estado (Quito, ),
p. .
 Donna Lee Van Cott
control over the political quotas available to the ruling party under the
existing system.%( Implementing legislation for the judicial reform was not
prepared until the end of the Sa! nchez de Lozada administration, and it was
never introduced in the National Congress. Only the new Penal Code was
approved during his term. Fulfilling a longstanding public commitment,
President Hugo Banzer, who took office in July , passed legislation
establishing the new judicial institutions created by the  reform,
including the Constitutional Tribunal. That tribunal began operating only
in . Implementing the judicial reform is part of the Banzer
government’s strategy to recover from the ignominious experience of
being named the world’s second-most corrupt country by Transparency
International.%)
For the Sa! nchez de Lozada government, the indigenous customary law
issue was part of a larger effort to accommodate Bolivia’s formal legal
system to the reality of a country where justice is administered mainly in
informal, oral, local settings and to create a more humane system, closer
to the people, that promotes reconciliation and human rights. As in
Colombia, a main goal was the recuperation of legitimacy for the state by
incorporating community justice systems with high levels of legitimacy.%*
As Justice Ministry officials argued :
the recognition of community justice is the most effective alternative for
satisfying the demands for justice of the national majority, without imposing a
legal order and formal justice, which are alien and ultimately ineffective for
resolving conflicts.&!
They contend this, because community members actively take part in the
proceedings, interact with familiar community authorities, and because
the decision rendered is negotiated among the parties to the conflict. In
contrast, ordinary justice is handed down unilaterally by a non-community
member in a formal procedure in which the parties are passive subjects.&"
Due to the delay in implementing the judicial reform, legislation to
implement the right of indigenous peoples to exercise their customary
legal systems was unfinished at the end of the Sa! nchez de Lozada
%( Confidential interviews in La Paz with former justice administration officials ; interviews
in La Paz, Luis Va! squez,  June  ; Gustavo Ferna! ndez,  June  ; Ramiro
Molina R.,  May  ; La RazoT n,  Oct. , p. A.
%) Interview, Jorge Quiroga, La Paz,  Dec. .
%* The greater legitimacy of indigenous community authorities relative to state courts is
confirmed by a  poll on public support for public and private institutions, in which
indigenous authorities placed second after the Catholic Church, while courts placed
th out of  institutions listed. See M. Seligson, ‘ La cultura polı! tica de la democracia
en Bolivia :  ’, unpublished study prepared for USAID, .
&! Translation by the author. ‘ Justicia Comunitaria y Jueces de Paz ’, Documento de
Trabajo, Ministerio de Justicia, , p. .
&" Interview, Silvina Ramı! rez, La Paz,  May .
 Legal pluralism in Bolivia and Colombia 
administration. Preparation of this legislation has been assigned to a team
of Justice Ministry anthropologists, headed by Ramiro Molina. During
the last eight months of the Sa! nchez de Lozada administration, Molina
supervised a World Bank-funded project to prepare case studies of the
customary legal systems of the three largest ethnic groups, as well as two
urban cases, and to draft implementing legislation to accommodate oral
traditions to positive law. Due to heavy urban migration in the last
decade, indigenous community justice is not confined to rural areas.
Migrants typically bring their legal systems with them to urban areas, a
practice facilitated by the custom of settling with fellow migrants.&# The
project was completed during the Banzer administration and was
published in . The studies are intended to serve as guidelines for
judges in interpreting the constitutional right to customary law and in
determining the guilt and sentencing of indigenous defendants, although
in practice they barely cover the great diversity of Bolivian customary
legal systems, since even within language groups there may be variations
in procedures and norms.&$
As in Colombia, indigenous organisations offered legislative proposals
for the implementation of the right to exercise customary law. The
confederation uniting most of the lowland organisations, the
Confederacio! n de los Pueblos Indı! genas de Bolivia (CIDOB), proposed
the establishment of an indigenous justice administration hierarchy
parallel and similar to that for non-indigenous law. Justice ministry
officials rejected the proposal because it imposes a system of authority on
a diversity of systems that may not have the judicial figures contemplated
in the CIDOB proposal – that is, the authority to administer justice may
be rotated, or may lie in a group of people or an assembly rather than in
a single person, as in ordinary law. In addition, the CIDOB proposal
called for the codification of customs into positive law, which would strip
them of their flexible, dynamic character. Thus ironically, as in Colombia,
proposals prepared by the major indigenous organisations were rejected
by government officials as being too restrictive of indigenous com-
munities’ constitutional rights.
It is not surprising that Bolivians faced similar problems in creating
a law coordinating indigenous and national jurisdictions, since the
ambiguous and vague language contained in Article  is almost
identical to that of the Colombian Constitution’s Article . Bolivian
Justice Ministry staff observed that this language may recognise an
indigenous jurisdiction that is entirely separate from the national system,
or one that is subordinate to it. As in Colombia, it is unclear whether
&# Interview, Esteban Ticona, La Paz,  Dec. .
&$ Interviews in La Paz, Lorena Ossio,  Dec.  ; Ramiro Molina,  May .
 Donna Lee Van Cott
Indians have the right to choose indigenous jurisdiction over that of the
state, or whether indigenous jurisdiction is mandatory. This issue was
resolved in the  revised Code of Penal Procedure, which gives
defendants the option of choosing either state or community jurisdiction.
Penal action is extinguished in cases where the community has resolved
the issue. It remains unclear whether indigenous customary law has broad
territorial or functional scope, or whether it is restricted to internal,
cultural matters not regulated by the state.&% It is possible to interpret the
limits of indigenous jurisdiction as either ‘ fundamental rights ’ or as the
constitution and other laws. The scope of indigenous autonomy in the
administration of justice is restricted in Bolivia by the absence of
constitutional recognition of the territorial autonomy of indigenous
peoples. Whereas the Colombian Constitution clearly extends juris-
dictional, politico-territorial authority to indigenous communities, in
Bolivia indigenous organisations and their advocates had to settle for
collective property rights. The greater resistance of Bolivian elites to
recognising a territoriality for indigenous authority is understandable,
given the implications of extending this recognition to more than  per
cent of the population.
The most difficult conceptual question the Justice Ministry team is
struggling with is that of limits to customary jurisdiction. Anthropologist
Ivan Arias, a consultant on the customary law project, argues that,
although there are many positive aspects of campesino justice – such as the
use of strong moral sanctions, the prominence of orality and dialogue in
the development of consensus among the accused and the community,
and the ultimate aim of achieving harmony within the community – there
are a number of problems in the treatment of women and children that
violate constitutional, statutory and international law that the state and
non-indigenous Bolivians should not be expected to tolerate. The
difficulty will be excising these practices and norms from traditional legal
systems without doing violence to the culture.&& The team is leaning
toward identifying the constitution as the only limit, since international
conventions are not well integrated into Bolivian law, as they are, for
example, in Colombia and Costa Rica. With a view toward promoting a
dialogue on this key point, the team devised a strategy to engage the
public, lawyers, judges and indigenous communities, and undertook a
training project with the Judicial Counsel.&'
To fend off resistance from the older legal establishment, the Justice
Ministry team studied historical texts revered by the legal establishment
&% Interview, Silvina Ramı! rez, La Paz,  May .
&& Interview, Ivan Arias, La Paz,  Dec. .
&' Interview, Lorena Ossio, La Paz,  Dec. .
 Legal pluralism in Bolivia and Colombia 
for language that would support an interpretation of customary law as
potentially public, formal, and positive in nature.&( They also looked at
the experience of constitutional courts in other countries as interpreters of
this law, with particular interest in the Colombian case, since Bolivian
politicians and elites are accustomed to adopting norms and practices that
have international prestige. Some politicians and congressional deputies
have questioned the very concept that indigenous and campesino
communities practice anything that could be called justice, pointing to
practices such as physical punishment to demonstrate their ‘ savageness ’
and ‘ barbarity ’. Nevertheless, the Banzer government’s indigenous affairs
office has encountered enthusiasm for the project among the younger
generation of judges and law clerks, who have participated in government-
sponsored training programmes.&)
These educational programmes are important because Bolivia’s legal
education tradition is fundamentally positivist, and has denied the
existence of legal pluralism. It offers no training in indigenous legal
systems and has produced no lawyers or judges who understand the topic.
During the Sa! nchez de Lozada administration, the government sponsored
a variety of fora to educate the country’s senior judges about the issues
involved in recognising indigenous justice systems, including an
international conference on the administration of justice in indigenous
communities. Through the participation of Colombian constitutional
magistrates and juridical anthropologists, the Bolivian government
became familiar with the Colombian experience.&* It was the first time
that indigenous justice systems were discussed at such a high level of
judicial power. Despite the existence of numerous laws on these matters,
the Bolivian Supreme Court has never issued a ruling on indigenous
rights or on the issues of diversity or multiculturalism.'!
The Bolivian government and courts have continued the pre-reform
policy of staying out of indigenous community justice administration. For
example, the government responded only weakly to a  case of
reported witch-burning in the Guaranı! -Izozog community of Alto y Bajo
Izozog, in the lowland department of Santa Cruz, where it is the custom
for authorities to expel community members judged to be witches and, if
they return, to execute and burn them. When the aunt of Capita! n Grande
Bonifacio Barrientos and her husband – both declared to be witches and
expelled from the community of Cuarirenda – were shot upon returning
to the community and their bodies burned, the municipal authorities of

&( Interview, Lorena Ossio, La Paz,  Dec. .

&) Interviews in La Paz, Esteban Ticona, Ernesto Mun4 oz,  Dec. .
&* Interview, Rene Orellana Halkyer, Santa Cruz,  July .
'! Interview, Jorge Luis Vacaflor, La Paz,  May .
 Donna Lee Van Cott
Charagua sent the police to arrest the perpetrators. However, the police
left without making an arrest after the entire community claimed
responsibility for the murders. A nearby army post also attempted to
intervene, but was rebuffed. The matter is currently not being pursued by
the state.'" The prosecution of witches by indigenous communities is
perhaps the archetypal case of indigenous customary law, severely
punishing behaviour that is not considered unlawful under positive law.
Normative conflicts between the two justice systems are likely to emerge
on this issue throughout the region, where numerous indigenous
communities sanction witchcraft, often with execution.
Beginning in , in an effort to protect their new constitutional rights
to customary law against possible state intervention, the Guaranı! –Izozog
worked with anthropologists to write down their statutes and regulations.
They are the only indigenous people in Bolivia with written norms of
administration of justice. To avoid conflicts with constitutional and
international law, these written statutes formally prohibit execution. The
most severe penalty that may be applied is expulsion from the community.
Anthropologists working with the group believe that communities may
continue the practices of expulsion and witch-burning clandestinely to
avoid the intervention of human rights organisations, since the state is
disposed to intervene in cases where the right to life is considered to be
violated.'#
There are four possible explanations for the Bolivian state’s lesser
intervention in indigenous community justice issues. First, unlike
Colombia, expelled witches have not sought legal action to protect their
constitutional rights, despite the existence of a significant community of
expelled witches in the city of Santa Cruz. Indigenous communities –
including the families of the executed witches – have maintained solidarity
on the issue of customary law in the few cases in which authorities have
been challenged. As Orellana explains,
The authorities are not obeyed out of fear of their power ; rather, there exists a
broad participation and acceptance on the part of the communal society, such that
a great degree of legitimacy and validity is bestowed on the administration of
justice.'$
Perhaps there is greater community solidarity behind the administration
of justice by indigenous authorities because the factionalism that comes
with electoral participation has not yet generated community divisions –
'" Interviews in Santa Cruz, Rene! Orellana Halkyer,  July  ; Isabelle Combes, 
July .
'# Interviews, Silvina Ramı! rez, La Paz,  May  ; Rene! Orellana, Santa Cruz,  July
 ; Isabelle Combes, Santa Cruz,  July .
'$ Translation by author. Orellana, ‘ Un derecho sobre muchos derechos ’, p. .
 Legal pluralism in Bolivia and Colombia 
as occurred in the Pa! ez community of Jambalo! . Partisan politics did not
enter indigenous communities in a major way until the  municipal
elections. Greater community-level solidarity may also explain the absence
of a key role for zonal and regional indigenous organisations in resolving
intra-community disputes over the administration of justice. As opposed
to the situation obtaining in Colombia and Peru, there does not appear to
be a tradition of referring intractable community disputes to zonal or
regional organisations, even though such organisations do exist in
Bolivia.'%
Secondly, according to Ramiro Molina, Bolivian indigenous law has
been consistently and autonomously practiced and is well known and
understood within the communities. Over the centuries, ethnic and
Western norms adapted to each other and to changing political
conjunctures. This may be more the case in Bolivia due to the more
centralised and rural nature of the country, and the greater dispersion of
its population. Although the Colombian and Bolivian territories are
approximately the same size, the Bolivian population is hardly larger than
the population of Colombia’s capital city (seven million), and  per cent
of the population lives in communities of  people or fewer. Bolivian
courts have been a largely urban phenomenon. As a result, in much of the
country there has been little challenge to indigenous law from the state,
not to mention the guerrillas, military units and paramilitaries that
compete for norm-making authority with indigenous authorities through-
out Colombia. In addition, according to Molina, in Bolivia judicial
authority is exercised democratically and rotated, ensuring that punish-
ments are fair and widely accepted. Thus, occasions do not emerge, as in
the Jambalo! case, where one sector of elites within the community
challenges another’s interpretation of indigenous law.'&
Thirdly, the tradition in Bolivia is to negotiate rather than adjudicate
conflicts, a preference that arose out of necessity. Courts are inaccessible
to most of the population due to their concentration in urban areas, which
limits access for the  per cent living in rural areas, who must invest
considerable time and expense to visit the local provincial capital. Bolivian
courts commonly impose user fees –  per cent of the judicial budget –
which are beyond the reach of the  per cent living in poverty. Other
barriers are the predominant use of Spanish and written procedures in a
country where many are illiterate and do not understand Spanish, the
insufficient supply of legal advisors for the indigent, and the slowness of
the judicial process, due in part to the scarcity of judges. A decade ago a
total of  judges served a population of about seven million, a ratio of
approximately one to every , inhabitants – a low rate of judges\
'% Orellana, p. . '& Interview, Ramiro Molina R.,  May .
 Donna Lee Van Cott
population even for Latin America.'' Courts are distrusted more than any
other Bolivian institution with the exception of political parties and the
police, due to the permeation of judicial appointments by partisan politics
and corruption.'( In contrast to the situation in Colombia, judges lack
professionalism, enjoy low public prestige and are poorly paid. Where
conflicts between indigenous rights and the state have occurred, lawyers
negotiate these with the appropriate authority, rather than filing suit.
Thus, no tradition ever emerged of defending indigenous rights in the
courts.') And, again in contrast to Colombia, no non-governmental
organisations emerged devoted to defending rights in courts. Bolivia’s
lively NGO sector and social science professionals have traditionally
worked on economic development and cultural issues rather than on the
issue of rights per se.'* Due to the far lower incidence of political violence
and human rights violations in Bolivia, there is no battery of attorneys’
organised to defend human rights comparable to that existing in
Colombia.(!
Conclusion
Political elites in both countries understand the urgency to provide a
cheaper, more accessible, more face-to-face form of justice administration,
particularly in rural areas, in order to legitimise the authority of the state
and extend the presence of the rule of law throughout the territory. This
goal was the principal reason that they were willing to recognise indigenous
customary law. The fact that neither country was able to codify the
coordination of the two systems does not imply that this is impossible.
Other states have imposed an interpretation of this term. The jurisdiction
of tribal courts in the United States, for example, is well settled. In our
cases, however, both states’ democratic legitimacy is fragile and both have
made public commitments to recognise diversity. Neither seems willing to
impose its vision of legal pluralism on authorities that enjoy greater
popular support and legitimacy than the state. It is better to muddle
through without a statutory law than to risk impugning the regime of
rights and the legality that the recent constitutional reforms were intended
'' For example, according to Gamarra, Colombia has one judge for every ,
inhabitants. Eduardo Gamarra, The System of Justice in Bolivia : An Institutional Analysis,
Monograph  (Miami, ), p. .
'( Seligson, ‘ La Cultura Polı! tica de la Democracia ’.
') Interviews, Jorge Luis Vacaflor,  May  ; Silvina Ramı! rez,  May .
'* The exception to this rule, the Santa Cruz-based CEJIS, operates primarily through
negotiations with the executive rather than the courts.
(! On the observations made here about the Bolivian justice system, see D. L. Van Cott,
‘ The Role of Justice in Conflict Resolution in Multiethnic Countries : The Bolivian
Case ’, paper presented at the Workshop on Multiethnic Nations in Developing
Countries : Colombia as a Latin American Case, Fribourg, Switzerland, April , .
 Legal pluralism in Bolivia and Colombia 
to construct. In practice, the formal demarcation of jurisdictions has not
been a major source of conflict, since in both countries informal
coordinating mechanisms have been created and adapted as state and
indigenous legal systems have developed over time. As Iturralde observes
with respect to Latin America in general, in virtually all cases customary
law is practised in interrelation with positive law, depending on the
problem the community is addressing. Many communities, particularly in
the Andes, often choose to refer disputes to the state rather than to handle
them internally.(" Although indigenous organisations in Latin America
claim a broad scope for the exercise of autonomous judicial authority as
part of a larger effort to assert political autonomy, in practice the bulk of
the scope of indigenous customary law has to do with disputes over the
use of community lands, family law (abandonment of minors, relations
between married people, inheritance), and a number of minor crimes such
as petty theft and assault. Normally customary law is applied only to those
persons identified by community authorities, and who identify themselves
as community members.(#
In Colombia, more conflicts over the jurisdiction of customary law
have erupted than in Bolivia because of factionalism within indigenous
communities ; the greater level of urbanisation in Colombia and, thus, the
lesser geographic isolation and privacy for community practices ; the
more pronounced tradition of claiming rights before Colombian courts,
particularly within the indigenous movement ; and the failure of the
Colombian congress to pass legislation establishing the Indigenous
Territorial Entities that were to provide the politico-territorial basis of
indigenous jurisdiction. These problems are balanced by the unusual
propensity of a sector of Colombia’s professional judiciary to permit a
wide scope of autonomy for indigenous special jurisdiction and by the
persistent efforts of regional and national indigenous organisations to gain
public support for their interpretation of indigenous autonomy. The
indigenous movement has been able to maintain public interest in, and
government attention to, cultural diversity through high-profile
mobilisations, and by steadily increasing its representation in government
office.($ In Bolivia, indigenous autonomy is facilitated in the absence of
sustained governmental support and of a judiciary interested in or

(" D. Iturralde, ‘ Movimiento indio, costumbre jurı! dica y usos de la ley ’ in R.

Stavenhagen and D. Iturralde (eds.), Entre la ley la costumbre. El derecho consuetudinario
indıT gena en AmeT rica Latina (Me! xico, ), pp. ,  ; Iturralde, ‘ Usos de la Ley y usos
de la costumbre ’, pp. – ; A. Wray, ‘ El problema indı! gena y la reforma del Estado ’,
in Alberto Wray et. al, Derecho, pueblos indıT genas y reforma del Estado (Quito, ), p. .
(# Ministerio de Justicia, ‘ Justicia Comunitaria y Jueces de Paz ’, p. .
($ Indigenous political parties hold three senate seats, two seats in the lower chamber, one
governship,  mayorships, and more than  municipal council seats.
 Donna Lee Van Cott
knowledgeable about legal pluralism or multiculturalism, largely through
the geographic cultural isolation of indigenous communities, the lack of
interest on the part of the state and the historical weakness of justice
administration.
In both countries, the multicultural zeitgeist of the s has sensitised
the general public to the status of indigenous peoples and has created a
public mood at least passively hospitable to indigenous rights claims. The
disposition to tolerate indigenous customary law despite the existence of
practices that offend Western sensibilities is reinforced by the international
discourse on multiculturalism and the growing acceptance of legal
pluralism in constitutions and international human rights law.(% The most
important challenge today is that of allocating sufficient resources to
educate judges and attorneys about indigenous legal practices and the new
national and international norms on indigenous rights, and to train
Indians from all language groups as judges, advocates and translators.
(% See the literature cited in note .