Legal systems and legal scholarship both tend to emphasise analytical distinctions. Thus, we frequently see arguments about whether specific categories of behaviour should be legal or illegal, permissible or impermissible, included within the jurisdictional boundaries or excluded, and so on. The real world, of course, never fully cooperates with these analytical frameworks. People in their daily lives fudge the categories, intuitively mixing their own sense of morality, custom, community norm, formal law, bureaucratic license and sense of resistance together into a hodgepodge of legality.
Eugen Ehrlich (Reference Ehrlich2017) called this hodgepodge ‘living law’ many decades ago, and legal pluralist scholars have often taken it as their mission to remind others studying law and culture that law is not only found in the formal apparatuses of the centralised state. Yet, in their zeal to emphasise the importance of ‘customary’ law or ‘local’ law or ‘traditional’ law, pluralists too can sometimes lapse into frameworks that juxtapose formal and informal law as if that jurisdictional boundary had clear divisions. So, for example, we hear about state versus non-state law, or about customary law as a site of resistance to the central authority, or the ways in which indigenous law operates as an alternative to state law, and so on. In such a formulation, we might mistakenly limit legal pluralism to a clear clash of legal fora, restricting our gaze to people ‘choosing’ one legal system over another or operating one system ‘in parallel with’ the other, or ‘in opposition to’ the other and so on.
Therefore, every once in a while, it is good to be reminded that these categories of formal and indigenous, customary and official, are also far less rigidly delineated in daily life than either legal systems or scholars might often conceptualise them. And this is true even in countries such as Ecuador that have tried to build legal pluralism into their constitutional structure. Indeed, although indigenous Indian legal systems in Ecuador are given separate semi-autonomous status as a matter of national law, the reality on the ground is that members of indigenous communities not only do not always choose customary over national law; they do not necessarily perceive state and indigenous legal systems as being fully separate at all.
This is the central argument of Marc Simon Thomas's The Challenge of Legal Pluralism: Local Dispute Settlement and the Indian-State Relationship in Ecuador. A richly observed ethnographic account of the reality of legal pluralism in local settings, Thomas's work is a useful contribution to the literature on legal pluralism in local context. Of course, Thomas's central thesis is not new. Boaventura de Sousa Santos observed fifteen years ago that legal pluralism is not so much a matter of separate legal spaces as it is an ‘interlegality’, an environment of ‘different legal spaces superimposed, interpenetrated, and mixed’ (de Sousa Santos, Reference De Sousa Santos2002, p. 437). And many other pluralist scholars have made similar observations both before and since. Thus, it is not clear that the book breaks much new ground regarding legal pluralism on a theoretical or conceptual level. Nor is it ever entirely clear what the particular ‘challenge of legal pluralism’ is that the title suggests the book will address. But there is no doubt that Thomas's field research is detailed and readable and that the observations provide useful contextual examples of interlegality in action.
Thomas begins with background chapters that first situate his study within the anthropological legal pluralism literature (though here he leaves out much work on legal pluralism that exists outside of anthropology) and then describes Ecuador's institutionalised legal pluralist constitutional framework as well as the particular variety of legal and quasi-legal authorities that co-exist in indigenous Ecuadorean communities. At the heart of Thomas's work, though, is a set of three case-studies from the largely indigenous parish of Zumbahua, located in the west Andean ridge of the Ecuadorean highlands. Each of these case-studies focuses on a local dispute that is resolved by one of the authorities that operate in Zumbahua.
The first case-study involves the teniente politico, an appointed political official who is a combined chief of police and justice of the peace. According to national law, he is only allowed to resolve relatively minor civil or criminal cases and is supposed to use national law to resolve them. In practice, according to Thomas, the teniente politico often hears cases beyond his jurisdiction and resolves them in accordance with customary law. Indeed, as Thomas tells it, the process of dispute resolution before the teniente politico reflects many features of customary law despite the fact that the teniente politico is technically a state officer. Thus, he is viewed by the community more as an indigenous or local authority than a national one and, as such, he plays an interlegal role as a sort of mediator between state and rural legal communities.
The second case-study is set in the provincial Court of Justice, part of the national court system. Thomas first explores the various reasons that indigenous litigants might opt for the national court system rather than local authority, concluding that indigenous people do not invariably prefer customary authority. Here, the framing of the case-study does seem to suggest that individuals do sometimes engage in conscious forum-shopping among distinct jurisdictional authorities – a vision of binary choice that Thomas elsewhere criticises. Thomas recognises the tension in his argument and suggests that, when de facto community sovereignty is at stake, national courts are the only option. Yet, while that may be true, it still means that legal pluralism sometimes works to create alternative ports of entry into the legal system for strategic actors exercising agency. Interestingly, however, despite the resort to the national courts, one of the key questions in the case is whether customary law should nevertheless be used by the national courts to resolve the dispute in question. The Ecuadoran Constitution permits the use of customary law, but only if the dispute can be considered an ‘internal conflict’ – a term that is not defined in the Constitution and therefore, not surprisingly, is the subject of vigorous dispute.
Finally, the third case-study involves a murder that is initially adjudicated locally but then generates national political attention and ultimately is prosecuted in the national courts. Thomas notes that there are few if any coordinating rules determining the relative jurisdictional boundaries between these two systems, and the result is a legal void that is filled with political contestation. Thus, a case about a murder becomes a case about relative jurisdictional power and forms of sovereignty.
In the end, none of Thomas's conclusions is particularly surprising to anyone versed in the pluralism literature. Legal pluralism, at root level, is a terrain of engagement where various actors – litigants, community members and activists, as well as local and state authorities – strategically vie for power, jurisdictional authority and, of course, whatever substantive outcomes they desire. In such circumstances, the various legal systems inevitably become intertwined, some authorities will try to become interlocutors between the two systems, courts and others will seek to define coordinating rules to delineate jurisdictional spheres, and people in their daily lives will have an inchoate sense of multiple authorities but no clear perception of distinct legal systems.
These are the core insights of legal pluralism scholarship going back as far as Ehrlich if not farther and, although Thomas does not really contribute substantially to these conceptual observations, he is to be commended for providing a detailed and well-researched account of how these realities play out in an important local context where legal pluralism is baked into the formal constitutional structure. Perhaps, in the end, the challenge of legal pluralism, at least in Ecuador, is how best to craft coordinating rules, procedural mechanisms and institutional designs to manage without eliminating the legal pluralism that is intrinsic to daily life there.
