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ABSTRACT
The Bolivian constitution, debated in a Constituent Assembly in 2006 and 2007 called by the country's first indigenous president, Evo Morales, was adopted in a referendum in 2009. Among many other important provisions recognizing the country's majority indigenous population, it legitimizes the practice of indigenous community justice. Indigenous justice differs in important ways from the national justice system and from the international human rights regime but it expresses a legitimate assertion by the country's indigenous peoples of their cultural integrity.
I. Introduction
On 25 January 2009, the Bolivian people approved a new constitution in a referendum with 61 percent voting in favor.1 The constitution emerged from the indigenous movement that had grown in the country during the previous decades and propelled Evo Morales into the presidency, the first indigenous president in the country's history, in 2006. The constitution enacted some of the major demands of that movement, affirming the status of the country's indigenous majority and ratifying the legitimacy of indigenous cultural practices. Among them, it recognizes the practice of indigenous community justice alongside the state justice system.
Indigenous community justice poses many challenges to the ordinary justice system (as the state system is called). It has a fundamentally different philosophical basis. Its rules, procedures, norms, and (frequently) outcomes are different from those of the ordinary system. Those who demand recognition for indigenous cultural practices claim legitimation from the international human rights regime, which affirms the right of culturally distinct groups within a state to practice their own culture. But some practices, and in particular community justice, depart from that regime's norms in important respects.
In this article I will examine the workings of indigenous community justice (also known as derecho consuetudinario or customary law) and its incorporation into the new constitution. First, I will discuss the growth of indigenous consciousness that gave rise to the demand for the recognition of community justice. Second, I will compare the claims of indigenous rights to the conceptions of rights in Bolivian ordinary justice and the international human rights regime. Finally, I will assess the potential of community justice to fulfill Bolivia's indigenous communities' demand for justice.
II. Bolivia: An Indigenous Majority Country
Sixty-two percent of Bolivians are indigenous, the largest proportion of any Latin American...