Legal Fetishism and Ignorance of Sociolegal Reality in Peru

Abstract

Based on the analysis of various bills aimed at modifying article 149 of the 1993 Peruvian Constitution on coordination between the justice system state and the special jurisdiction recognized to the indigenous and rural communities of the country, this article attempts to demonstrate that Peruvian legislation is a tributary of a strong formalistic conception of reality. Although the Constitution recognizes the dynamism of community-based justice systems, in practice there are several conflicts caused by its coexistence with the state justice system. The attempts of the government to manage the ethnic and cultural Peruvian diversity can be labeled as manifestations of "legal fetishism", which defines Law as a magical, separate and independent institution, detached from social phenomena, producing redundant and confusing legislative reforms that lack empirical support. This can be seen in the bills analyzed in this article. These unnecessary micro-reforms prove that the Peruvian legislators are still trapped in normative nominalism and suffer from a serious unawareness of the objects they pretend to regulate: in this case, the legal complexity of the jurisdiction granted to the indigenous and peasant communities.