A-Infos (en) Sicilia Libertaria: Relativism: Legal pluralism: the Mexican case (3) (ca, de, it, pt, tr)[machine translation]

In the latest issues of Sicilia libertaria we have been interested in 
"legal relativism", reflecting on some cases of contradiction between 
Italian legal norms and the normative experiences of emigrants coming 
from countries or cultures with different traditional or formal norms 
and in clear contrast with the Italian ones; see the case of forced 
marriages which have also produced violence and deaths, always female. 
Since these were individual cases, we asked ourselves what was happening 
in those countries where, in addition to state norms, there are also 
particular norms produced by ethnic groups within local states. For this 
reason, we have dealt with countries such as Venezuela and Bolivia, with 
an indigenous presence and whose constitutions, which are cutting edge 
in terms of human and cultural rights (at least on paper), include the 
recognition of local legal norms and, in part, they command their 
respect. We have seen that, unfortunately, these constitutions imposed a 
limit on this recognition: that local rules did not contradict the 
dominant state ones. Evidently, the totalitarian form of the bourgeois 
state, even when it claims to respect the so-called minorities, and they 
are not always so, at least numerically, cannot afford the luxury of 
completely accepting a relativism that would open the floodgates of its 
radical crisis. On the other hand, the historical political weakness of 
the indigenous peoples, clearly due to genocide and continued social and 
cultural repression, has not allowed them to have sufficient strength to 
impose themselves, except in cases of armed rebellion. And when they did 
it politically, as in the case of Bolivia, they had to mediate with the 
strong non-indigenous economic powers and accept the form of the 
traditional state.

However, there is at least one example in which these processes took 
place differently: the Mexican case. Located in Central America, Mexico, 
official name "United Mexican States", is a country of large territorial 
extension (almost two million kilometres, more than six times the size 
of Italy) with a population of approximately one hundred and thirty 
million individuals, of which approximately twenty million 
self-recognize as such, even if only twelve million live in communities 
and territories recognized as indigenous by the state, being able to 
identify around seventy ethnic groups, each with its own language and 
culture, including traditional legal forms. Even if these are high 
demographic numbers, it is necessary to clarify that at the beginning of 
the twentieth century more than half of the Mexican population was 
indigenous and even one of them, the Zapotec Benito Juárez, had been 
president of the republic in the mid-nineteenth century. Unfortunately, 
his successors were strongly anti-indigenous, so much so that at the 
beginning of the twentieth century many indigenous people joined the 
revolutionary movement led by Emiliano Zapata. The constitution of 1916 
was the result of this rebellion, even if the "modernization" of the 
country during this century marginalized indigenous participation, 
without ever managing to extinguish the drive for rebellion, sometimes 
even armed. Precisely this continuous tension with the central state, 
associated with a greater sensitivity of non-indigenous groups and 
international institutions, such as the UN and the ILO, has allowed, 
from the nineties of the last century onwards, important constitutional 
changes in relation to the Mexican indigenous peoples , particularly 
with the amendments to the second article in 2014.

The current constitution already declares in its first article that any 
ethnic discrimination is prohibited, while in the second, entirely 
dedicated to indigenous peoples, it reaffirms the pluricultural 
character of the state. Going beyond old models based on biology, it 
proclaims that ethnic belonging must be based on everyone's decision: 
"Awareness of one's indigenous identity must be a fundamental criterion 
for determining to whom the provisions on indigenous peoples apply." 
This principle is associated with that of autonomy, both in the 
management of social life and in the form of election of the leaders of 
each community, following "the proper forms of internal government". The 
same principle also applies to the administration of justice: "Apply its 
own regulatory systems in the regulation and resolution of its own 
internal conflicts, subject to the general principles of this 
Constitution, respecting individual guarantees, human rights and, above 
all, dignity and the integrity of women" (Article 2).

Even if the limitation given by the need not to contradict the very 
constitution of which the cited article is part continues to appear, as 
we have seen in other Latin American constitutions, in practice we find 
ourselves faced with a different reality from those we have already 
occupied: the right to the Right!

The legal figure that allowed the implementation of this right to have 
its own legal forms was that of the "Indigenous Municipal Courts" 
(juzgados comunes indígenas). These are legal systems that theoretically 
apply traditional indigenous rules, also proceeding with their 
formalization, inserted into the local legal system of each state 
(Mexico is a federation of states). In this way, these municipal courts 
began to be created in states with a greater indigenous presence, such 
as Campeche or Chiapas, among others. For example, in the state of 
Puebla, six have been established, while in Quintana Roo, a territory 
with a strong Mayan presence, seventeen. As in other cases, their 
function consists in resolving criminal, civil, family disputes, with 
value only within the indigenous community or territory of their 
competence, without power over the non-indigenous populations present in 
the same territory, for whom justice applies. general of the state. In 
case of disputes between natives and non-natives, a mixed forum is 
constituted.

In general, even with the foreseeable contradictions, the "indigenous 
municipal courts" have worked relatively well, even if accompanied by 
controversies from non-indigenous jurists and lawyers, convinced that 
their very presence limits the prerogatives of the federal state. Behind 
this resistance to accepting the existence of a legal pluralism there 
are clear right-wing ideologies and parties (such as: a state, a 
culture, a language), even if there is no lack of implicit and even 
explicit support from figures and parties who claim to left. Not being 
able to eliminate these experiences of indigenous autonomy, supported by 
the dictates of the constitution, the central and local state 
institutions attempt to erode the space of the indigenous courts, 
perceiving their convening power and, above all, the symbolic value they 
have acquired, reducing the asymmetry in the relationships that 
indigenous peoples have historically had with the state. In this sense, 
for indigenous organizations, mediators between the population at large 
and the state, indigenous courts are a space of resistance and, at the 
same time, of the production of power. This can be clearly perceived 
particularly in the case of the Zapatista revolt in the Lacandona jungle 
in Chiapas, where social autonomy and resistance to state penetration 
have created "liberated spaces" and autonomous management. We will deal 
with this in our next intervention on the topic of legal pluralism.

(For further information: Aragón Andrade, Orlando (2010): "El pluralismo 
jurídico en los juzgados municipales de Michoacán. Una propuesta teórica 
para su estudio". Revista Pueblos y fronteras digital, v. 6, n. 9, pp. 
155-179 
(http://redalyc.uaemex.mx/src/inicio/ArtPdfRed.jsp?iCve=90616141007); 
Buenrostro Alba, Manuel (2014): "Justicia y derecho entre los mayas de 
Quintana Roo". Diario De Campo, n. 4-5, pp. 63-69 
(https://revistas.inah.gob.mx/index.php/diariodecampo/article/view/5725).

Emanuele Amodio

https://www.sicilialibertaria.it/
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