Jurisprudencia y Ciencias Sociales
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Item Hegemonía del sistema jurídico ordinario y el pluralismo jurídico en el ecuador(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Lozada Mera, Franklin Mauricio; Solano Paucay, Vicente ManuelPlurinationality and interculturality find their recognition in the current constitutions of the region, as well as in human rights, from which arises the right of indigenous peoples to maintain and preserve their ethnic and cultural identity. By virtue of this cultural diversity, indigenous peoples are recognized their own institutions, norms, procedures, and therefore their own legal systems. However, due to legal plurality, tension is generated between the ordinary legal system and indigenous law, regarding the production of law, in addition to the conflict of jurisdictions that arises in its application. On the other hand, it is necessary to point out that legal pluralism is not absolute, but rather has limits, which shows that there is tension between indigenous justice and human rights. By virtue of the indicated aspects, an ethnocentric vision of law could lead to ignorance of indigenous legal systems, eliminating their legal validity and efficacy. Therefore, the empire of western culture over aboriginal cultures would exclude any possibility that legal pluralism has a horizontal relationship with state law. In this regard, it is necessary to indicate that the supremacy of the law produced by the State could simply mean a damage to the cultural survival of indigenous peoples. Hence, an intercultural dialogue is necessary that allows the harmonization of the various legal systems that coexist in the State, so that there is no subordination between them. These aspects will be analyzed in this research work, in order to determine if in Ecuador a hegemonic conception of monism on legal pluralism is verified.Item La justicia Indigéna y la paráctica del pluralismo jurídico(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2020-07) Guanotuña Umajinga, Diego Rodrigo; Vargas Villacres, Borman RenanLatin America has been facing a context of harmonization and recognition of legal duality for some decades, this implies living in a diverse society, in which Ordinary justice is respected, as well as Indigenous justice registered not only within social conscience but also embodied in the constitutional system that for several years had been limited to cover only part of the population. This monistic thinking has been losing space in the field of legal doctrine since many modern writers who do not conceive the concentration of power in a single body, propose the coexistence of diverse systems, according to the customs and cultures of indigenous peoples and nationalities . Ecuador has managed to confront this constitutional void with the recognition of Legal pluralism in Article 171 of the constitution of the republic of Ecuador that allows indigenous authorities the free practice of indigenous Justice through their ancestral methods, it has also been achieved thanks to the struggle of the indigenous movements in their beginnings by the FEI in the year 1926, which was subsequently replaced by the CONAIE in the year 1986, achieving not only the constitutional recognition but also in organs of lower hierarchy, which allows an adequate functioning of the practice of legal pluralism. This recognition also implies being subject to constitutional control by the highest body that issues resolutions of jurisprudential nature (Constitutional Court) in the case of La Cocha through resolution 113-14-SEP-CC, which limits the actions of leaders indigenous and allows to know based on material competence to the State Bodies, in matters that involve the legal good. Indigenous justice, its forms, its principles, its own right with ancestral techniques are transmitted by essence orally for generations, this technique sometimes controversial but that has the endorsement of human rights and related treaties, provide solution to the conflict from the perspective of restorative justice that allows finding new alternatives towards the search for community harmony.Item El principio de autodeterminación y el reconocimiento a las costumbres ancestrales jurídicas de los pueblos Afroecuatorianos(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-11) Alvarado Pilligua, Johanna Dolores; Vargas Villacrés, Borman RenanThe Constitution of 2008 in Title Two Fourth Chapter develops Collective Rights for the Afro-Ecuadorian people, also establishing recognition of Rights and Principles typified in International Instruments such as ILO Convention 169, Charter of the United Nations, International Covenant on Human Rights Civil and Political, International Covenant on Economic, Social and Cultural Rights. In spite of the fact that the Magna Carta synthesizes Rights to the Afro-Ecuadorian People, the erosion of the Effective Protection of Rights to Black communities is evident, for that reason it is considered that the Legal Pluralism in Ecuador, develops with the Ordinary and Indigenous Justice, infringing the recognition to the Afro-Ecuadorian Jurisdiction. Although there are investigations that reflect the practice of Proprietary Law in Provinces of Esmeraldas and Imbabura, Afro-Ecuadorians are forced to be tried under Ordinary Justice. For this reason, we hold that it is important that the ancestral legal practices of Afro-Ecuadorian peoples be recognized through the Self-Determination Principle avoiding the violation of National and International Rights.