(Débat sur l’usage alternatif du droit, Amérique Latine-Europe)
04 / 1993
What is the "alternative use of the law"? Originally a conceptual category, this expression covers a variety of notions which vary from continent to continent and depend on the practical approach. In "El Otro Derecho", one of ILSA’s (Instituto Latinoamericano de Servicios Legales Alternativos)publications containing views on this point, a debate arose after an article written by Roberto Bergalli (Usos y riesgos de categorías conceptuales: conviene seguir empleando la expresión "uso alternativo del derecho"?)to which Germán Burgos, a Colombian researcher at ILSA responded.
According to R. Bergalli, critical criminologist and defender of the legal sociology of Max Weber, the role of the law in industrial and democratic societies has been: social regulation, conflict management, and the legitimation of power. On the other hand, these roles do not exist in societies struck by stagnation and social injustice, such as Latin America. Weber’s logic demonstrates the influence of the economic situation on the processes of production and application of the law ("elective affinities").
The expression "the alternative use of the law", (AUL), used in Latin America in a different cultural, socio-political and constitutional context, only refers to the practical side, forgetting the question of current law, which this expression implied at the beginning (Italy in the 1970s: see card "Alternative use of law in Italy"). In order to back up this criticism R. Bergalli uses a huge bibliography, relying particularly on the texts: "Una concepción metodológica del uso alternativo del derecho" by Manuel Jacques and "Comparaciones sobre las tendencias de los servicios legales en Norteamérica, Europa y América Latina" by Fernando Rojas, which were both published in the first edition of "El Otro Derecho" in August 1988. Bergalli believes that the Latin American AUL movement is a methodological renewing of legal science, centred on alternative legal services for the oppressed. But its role and its critical viewpoint are not yet clear: at the moment the only proposals are tactical actions in the face of an unjust legal system, rather than any deep-rooted strategy.
According to Bergalli, the AUL should rotate around three fundamental points:
1)the revision of traditional knowledge about legal dogmatism, which is still heavily dominating the Latin American legal culture;
2)the participation of judges and
3)the inclusion of social movements in the creation and interpretation of the law.
These movements suggest the need for a new legal paradigm, they want political representation for the excluded majority. In order to facilitate the production of laws by these social movements it is necessary to avoid giving this capacity of generation only to legal aid groups. As for the judges, they have a part to play in the interpretation and the creation of legal norms, in democratic transformation and in the control of the State’s respect of the law.
Germán Burgos has written his answer in the form of a "commentary". For him Bergalli’s article is an interesting comparative contribution and its epistemological bias will be useful for the construction of a Latin American legal sociology. But to believe that the AUL only exists in one viable form is being eurocentrist, it means attaching too much value to words. Even if it is true that the benefit of legal aid is sometimes lost in day-to-day activism R.Bergalli’s conclusions are only partial. The analysis of the law carried out by these groups is ever more critical, and legal assistance is being turned around by the participation of the communities in the settlement of their conflicts, the training of paralegals, the recognition of internal forms of community regulation, the promotion of pressure groups and extra-judicial conflict resolution. Alternative legal groups are also beginning to develop an alternative magistrature. The expression "the alternative use of the law" goes way beyond a simple conceptual category: it is growing day by day.
Bergalli’s article, sometimes very theoretic, is based on a bibliographical edifice. Behind his preoccupation with academic recognition for legal sociology lies the question: how does one reconcile criticism with the desire to integrate legal science? How can one support the empirical validity of legal sociology and the ideal validity of legal dogmatism at the same time?
This debate poses the fundamental problem of legal mediation and the sources of the law. Bergalli has taken the experiences of Italian judges as a starting point, but he suggests that the source of Latin American norms goes back to social movements. On the other hand Burgos defends the role of alternative legal aid groups. Neither of the two mention the phenomena of exclusion, social movements or the research into other legal sources in Europe.
Manuel Jacques introduced some new elements into this debate during a recent conference in Africa (see document cards, "Legal Services in Latin America" and "Theoretical challenges posed by alternative practice of the law").
Original card in French in Dph data base. The ’title/sub-title’ field corresponds to the ’translated title’ field in the French card.
R. Bergalli’s article "Usos y riesgos de categorías conceptuales: ¿conviene seguir empleando la expresión ’uso alternativo del derecho’?", was presented at the seminary "Sociology of Law and Politics in Latin America", Institute of Sociology of Law in Oñati, Spain, July 1991.
Articles et dossiers
BERGALLI, Roberto; BURGOS, Germán, El otro derecho, ILSA, 1992/03/01 (Columbia)