Legal Pluralism in the Constitution of Bolivia of 2009: Between Multiculturalism and Plurinationalism
thesisposted on 18.05.2016, 13:35 by María-Paula Barrantes-Reynolds
This thesis examines the role of human rights discourse in a decolonisation project. It focuses on ‘legal pluralism’, which in Bolivia refers to the constitutional recognition of indigenous legal orders, in the Constitution of Bolivia of 2009. This Constitution was the result of a cycle of social protests in Bolivia between 2000-2005 against neoliberalism, imperialism and colonialism headed by indigenous and peasant organisations that culminated in a Constituent Assembly Process (2006-2009). The thesis takes an transdisciplinary approach in order to define the concepts of legal pluralism, decolonization and indigenous autonomy in the Constitution, as well as to understand the way indigenous movements, the state and other political actors deploy the discourse of indigenous collective rights. The theoretical approach to indigenous rights is also transdisciplinary and focused on the problematization of the notions of culture, indigenous subject and indigenous law in international human rights law and in Bolivia’s current legal framework. The main findings of the research are that the Constitution adopts two competing paradigms in relation to the regulation of state-indigenous relations in general and legal pluralism in specific: a human rights approach and plurinationalism. However, because of the political context of the Constituent Assembly, the predominant approach in the Constitution is the human rights approach. The main argument of the thesis is that the this approach is in tension with plurinationalism because of the predominance in international human rights law of a reifying perspective of indigenous legal orders and cultures and a primitivist conception of indigeneity. The human rights approach therefore limits radical proposals such as the equal hierarchy of state law and indigenous legal orders, as proposed in the context of plurinationalism. In addition, because of its use of a cultural difference paradigm, currently the human rights approach, particularly in the context of judicial cases, depoliticises race and conflicts related to indigenous peoples by dissociating them from existing political and economic structures. Indigenous collective rights in this context become a (neoliberal) form of governmentality that contributes to the legitimation of these structures and the formation of a ‘permitted’ indigenous subject.