Kostogryzov Pavel
Abstract: Legal pluralism became the subject of study in European and American science since late 1960s – early 1970s. Russian jurisprudence began studying it in the 1990s. As a rule, the theory of legal pluralism is criticized from the positivistic point of view. Discourse of legal pluralism is often viewed by the orthodox jurisprudence as “anti-etatist”. The author disputes this opinion, proving that legal pluralism opposes not the state as such, but its particular model, namely, the nation-state of modern and contemporary period. Taken from broader historical perspective, non-state law not so much competes with the state as it supplements and supports the state responding to the same social demands. By the example of Latin American countries’ law systems, the author demonstrates that the principle of legal pluralism has transferred from the sphere of academic discussions to the scope of positive law. Latin American constitutions adopted in last three decades recognize indigenous peoples’ right to live in accordance with their customs, traditions, and forms of social organization, to maintain, apply and practice their custom law. Thus, along with the legal order established by the state another one emerges, being autonomous to the former. The author concludes that “strong” legal pluralism is established in the Constitution of Bolivia of 2009; the “weak” variant is implemented in Guatemala, Colombia, Peru and Ecuador. Hence, legal pluralism has turned from theoretical concept into ruling principle of positive law. In concluding remarks, the author hypothesizes about relationship between the “transformative neo-constitutionalism” and globalization process, as well as about further nation-state transformation.
Keywords: legal anthropology, legal pluralism, Latin America, nation-state, custom law, constitutional law, neo-constitutionalism, community justice.