ALMA Reviews Blog:De la antropologización del derecho a la recaída dogmática. Balance de los estudios sobre pluralismo jurídico y administración de justicia en el Perú (1964–2013)
[From the anthropologisation of law to dogmatic relapse. A review of studies on legal pluralism and the administration of justice in Peru (1964–2013)]
Author: Gálvez Rivas, Aníbal
Publishing by: Law Faculty, Pontificia Universidad Católica del Perú
For several years in the Global North, there has been an interesting debate on legal pluralism, basically understood as the possibility of more than one legal system coexisting in a given geopolitical space (e.g., Griffiths, 1986; Benda-Beckmann, 2002). For their part, scholars on Latin America have also participated extensively in these discussions (Guevara Gil & Thome, 1992; Sánchez Botero, 2014; Wolkmer, 2017 among others). The explanatory power of legal pluralism has made it possible to generate interpretations that embrace not only the cultural, and in particular the legal, diversity of the societies of the Global South but also the limitations of states established under the violent foundations of the nation-state and the state monopoly on legitimate violence. The theory has had particular trajectories in each academy, but what is the trajectory of legal pluralism in the Global South, specifically in Peru?
In contrast to the frequently less challenging standards in the Global North, the academic requirements in undergraduate programmes at some universities in the Global South are so high that it is not uncommon for undergraduate theses to become papers or even books. This is one such case. The book I am reviewing, published by Pontificia Universidad Católica del Perú (PUCP) is a version of Aníbal Gálvez Rivas’s thesis, defended in 2015 at the PUCP in Lima.
Gálvez Rivas’s research used qualitative methodology. He conducted interviews with experts and with actors involved in the PUCP law school educational reform of the 1960s and 1970s and examined information from the General Archive of the PUCP. However, his primary source of information was bibliographic: Gálvez Rivas conducted an extensive review of the documents published on legal pluralism and administration of justice in Peru during the period under examination (1964–2013). To determine the corpus, he consulted the catalogues of four libraries in Peru and used online academic search engines. He also cross-referenced results with the main reviews published on legal anthropology in Peru.
From his study of academic production, Aníbal Gálvez Rivas discerned the evolution of the Peruvian legal academy over time. During the 1960s and 1970s, the Peruvian legal academy dedicated to the study of the justice system experienced a series of transformations, which resulted in the development of an “anthropological intuition”. After the rise of legal sociology at the PUCP, this sub-discipline showed its limitations for the study of legal phenomena such as communal or indigenous justice. Faced with this, researchers realised that they needed other disciplinary tools, which they intuitively identified in the anthropology of law (p. 64).
In the late 1970s, this anthropological intuition was put into practice. Gálvez Rivas argues that the “anthropologisation” of law was put into practice, i.e., the option for Peruvian lawyers to investigate legal phenomena using the tools of legal anthropology:
... it was assumed that legal anthropology would allow us to better gauge our ability to understand the law, create it and interpret it in relation to our social reality. Thus, instead of continuing with the conceptual gymnastics of legal dogma, the new studies sought to explain to us how various sectors of our country experienced the administration of justice, whether state or local (p. 67). [This and subsequent translations by author.]
During the 1990s, the legal anthropological approach became less vigorous, and research on legal pluralism and the administration of justice re-embraced legal dogma.
I am referring to the fact that, although a certain interest in anthropological research has remained, the academic community has begun to resort mostly to traditional disciplines of legal thinking, such as the Philosophy of Law, the General Theory of Law.... In addition to its reduced frequency, legal anthropological research is ceasing to question the traditional study of law, as it is largely adopting dogmatic work through the hybrid concept of communitarian justice (p. 135).
On the one hand, the three periods mentioned above were mapped by Gálvez Rivas as three different thematic periods: i) 1964–1977: from legal codes to field notebooks; ii) 1977–1993: the advent of the field books; and, iii) 1994–2013: the dogmatic relapse and return to the legal codes.
Gálvez Rivas’s work of systematising the literature and different time periods is very useful. In each of the periods, he presents the most relevant research lines and summarises the academic research. It is undoubtedly an outstanding contribution to the mapping of socio-legal academic production in Peru.
Nonetheless, two critical comments can be made. Peripheral countries also reproduce the centre-periphery logic within themselves. In that sense, Gálvez Rivas’s text is centred on the literature produced in Lima or related to the academic centres of Peru, such as the PUCP. He is partly aware of this weakness, as he points out in his introduction (p. 37). A second shortcoming has to do with the difficulty in visualising the universe of texts analysed and their assignment to different periods. It would have been helpful for the reader to have an annexed table showing the periods and texts.
For the German academy and other countries of the Global North, the work of Aníbal Gálvez Rivas is interesting not only because it maps the trajectory of research on legal pluralism in an academic community of the Global South, but also because Germany has recently chosen to adhere to the International Labour Organisation’s Convention 169 on Indigenous and Tribal Peoples’ Rights, which recognises legal pluralism in its articles 8 and 9. In this way, the German academy can take advantage of the scientific debates produced in other parts of the world to feed the discussion in its respective academic circles.
Reviewed by César Bazán Seminario (https://www.arnold-bergstraesser.de/sites/default/files/docs/bazan_seminario_cesar_-_abi_cv_en.pdf)
Benda-Beckmann, v. F. (2002). Who's Afraid of Legal Pluralism? Journal of Legal Pluralism and Unofficial Law (47), 37–82.
Griffiths, J. (1986). What is Legal Pluralism? Journal of Legal Pluralism and Unofficial Law (24), 1–55.
Guevara Gil, A., & Thome, J. (1992). Notes on Legal Pluralism. Beyond Law , 2 (5), 75 –102.
Sánchez Botero, E. (2014). Algunos presupuestos epistemológicos y metodológicos de la antropología jurídica. In M. Castro Lucic, Los puentes entre la antropología y el derecho. Orientaciones desde la antropología jurídica. Santiago de Chile, Chile: Universidad de Chile, 143–188.
Wolkmer, A. C. (2017). Teoría crítica del derecho desde América Latina. Ciudad de México, México: Akal / Interpares.
Foto: ©Cynthia Matonhodze, Harare, Zimbabwe