Publication: Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective. Vol. 1: Fundamental Questions
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Date
2023
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PETER COLLIN AGUSTÍN CASAGRANDE (EDS.)
Abstract
It is likely that Ralf Seinecke never imagined that a Peruvian scholar with a cursory knowledge of German legal theory would comment on his text or that his contribution would have a direct and significant impact on Latin American legal scholarship, particularly in the fields of legal history and legal pluralism. In my view, and in a positive turn of the law of unintended consequences, this is bound to happen when Latin American scholars realize how important pluralistic legal thought was for the iconic German legal thinkers they study, and sometimes worship. Hopefully, this will generate a chain reaction of reinterpretations and research aimed at reassessing the role of legal pluralism in the historical and contemporary configuration of Latin American law.
To comment on his contribution, I first refer to Seinecke’s careful rendering of the central role pluralistic legal thought played in shaping the ideas of some of the most important German thinkers of the last two hundred years. I am not interested in rehearsing his main theses, but, rather, in highlighting some aspects that may be useful for exploring implicit pluralistic legal thought and its institutionalization in Latin America, particularly in Peru.
Second, I stress the short circuit between legal history and legal anthropology, and mainly legal pluralism. Despite the calls for a rapprochement, the strong bias towards conflating legal pluralism with ethnic and cultural diversity hinders any fruitful dialogue between these disciplines. Thus, the different and conflicting regulatory regimes enforced throughout Peruvian modern history are neither presented nor theorized as exemplifying legal pluralism. Third, I offer some examples of the officially multiplex legal world that 19th-century Peruvians inhabited. Legal pluralism was not only a sociological reality acknowledged by the authorities but also a state-sanctioned normative and institutional multiverse, albeit unsystematic and conflictive, given the secular structural weakness of the modern Peruvian state.1 It is only at the beginning of the 20th century, when centralization was accomplished in several legal fields, that official legal pluralism recedes and specializes on the ‘Indian question’. This development has led legal anthropologists and pluralists to make the false and reductionist equation between legal pluralism and ethnocultural diversity.2 Finally, I conclude that in order to reassess the history of Peruvian law, it is important to take into account how central legal pluralism was to German legal scholarship. Legal historical and anthropological studies should coalesce in this inquiry.
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Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective