The conundrum of cross-cultural understanding in the practice of law

Abstract

In many countries, there are distinct communities that administer justice following their own laws. Often this informal justice is not regulated by official state law. This situation can be called empirical legal pluralism. But regularly aspects of this local law are incorporated into state laws, for instance when traditional, local authorities are granted some official competence as state judges. In a few countries, particularly in Latin America, the local indigenous law as a whole is recognized on a par with state law. These are examples of formal legal pluralism. The question is whether the local jurisdiction changes under these conditions of formal legal pluralism, and if so, in what way? How are the local ways of viewing man, social relations, nature, spirituality, and the good life–their cosmovision–distorted by their law becoming part of the national legal order that manifests a different, more individualistic philosophy? This local cosmovision is sometimes poorly understood and not respected by the dominant elites and legal functionaries of the state. In this article, we look for examples of such cross-cultural misunderstandings. Two cases of the national jurisprudence exercised by a state constitutional court will be discussed, one showing this misunderstanding, and the other one overcoming it.