The Principle of the ‘Common’, Legal Pluralism and Decolonization in Latin America

Abstract

This paper aims to introduce, in the context of Latin America, the theoretical epistemic discussion regarding the theme of the ‘common’ as a political principle which substantiates instituting and autonomous processes of government, control and community regulation. The work seeks to relate a democratic scenario of the ‘common’ with the discourses of pluralist and decolonial normativity, in a way that would guarantee not only horizontal communal self-management, but also a legitimate ordering of forms of life, founded on common interest, social relations and interconnected structures. For this purpose the instrument of critical-socio-legal analysis is applied at the intersections with the ‘participative-communitary’ type of legal pluralism. Our proposal is to combine the contemporary meaning of the ‘common’, its relation to the Latin American principles of ‘buen vivir’ (living well) and ‘interculturalidade’ (interculturality), as well as the instituting practice of the ‘common’, that engenders a normativity built ‘from below’, which is in opposition to the traditional positivist and state legal system imposed through colonization in Latin America. Such achievements that, although formalized, are not being successful against institutional ruptures, have ‘cloistered’ the practices of the ‘common’ and made the existence of legal pluralism invisible.