Law and Popular Participation (II)

By Dmitri Prieto

In the second day of the symposium “Law and Popular Participation,” organized in Havana by the collective of critical legal experts Radar, from Mexico, the issue that generated the most interest and controversy was that of “legal pluralism.”

Let me explain. The questions posed were these: Is the State the only entity in society that produces law?  Or can there be others?  Can there be several effective bodies of law in a society?  And how do we know which law should be applied in each case?

Many radical jurists in Latin America defend the idea that indigenous communities, for example, produce legal norms that do not have to be similar to the ones established by the State. That posture calls itself legal pluralism.

In Cuba, we are not accustomed to those ideas.  Here law students are taught that there is only one body of law and it is produced exclusively by the State, because it is the only entity authorized to do so.  This is the posture called legal monism, and it is diametrically opposed to pluralism.

In the workshop, Mexican researcher (Liliana Lopez) showed how communities exist in Mexico where the residents themselves create their own police forces.  This is directly at odds with the idea of Max Weber that the State has the monopoly of legitimate violence.

In those cases, along with the law of the State, law and autonomous authority are organized based on those same communities.

What probably most surprised the participants was a presentation on legal pluralism in Cuba. This was presented by anthropologist Pablo Rodríguez (my supervisor at the institute where I work), who studied a community of illegal immigrants from the eastern provinces of Cuba that established itself in one of the municipalities of Havana.

In Cuba, to settle in the capital one needs to have special permits and documents; many easterners are attracted by the opportunities of Havana and take advantage of any opportunity to settle here.

Consequently, there are several illegal neighborhoods with precariously built structures (shantytowns) whose residents live under the constant threat of being evicted. These evictions sometimes occur, after which the expelled households return to the capital and reconstruct their lives again – at least until the next expulsion.

The special conditions of Cuba transform those citizens into people with a very exceptional status.

On one hand, their children study in Havana schools, since in Cuba it is not possible to deprive a child of the right to study.  Also – and here legal pluralism comes into play – if any of the families do not send their children to school (but, for example, instead to put them to work in some precarious occupation), that same community can request that this family be sanctioned with eviction. There is no reversing that step or any possibility of appeal.

The shantytown residents are not only concerned that their children study, but also that their settlements be seen as decent communities, ones made up of people who comply with social revolutionary norms.

Since the police usually do not enter these illegal settlements (sometimes they are prevented from doing so), the residents themselves must guarantee order within the settlement – and survival when individuals are outside of the community (because in Cuba it is obligatory to have a registered address and to carry an ID on which the person’s official address appears).

The police can deport an illegal immigrant to their place of origin.  But the residents of the shantytown usually lack ID cards, and of course their names don’t appear in official statistics…

They don’t vote, nor do they get married “on paper.”  Often their children’s births are not recorded… though later they go to the school without apparent problems.

Such situations often become problematic, for example, in connection with medical services or the supply of water.  In these cases, everything depends on the good will of the local (State) authorities.

But these authorities remain silent when the community applies its own sanctions; the State is unknowledgeable of those laws.

So is there or is there not legal pluralism in Cuba?

The session on legal pluralism concluded with a presentation by Dr. Julio Fernández Estrada, a young professor at the University of Havana Law School, and the son of the famous jurist, writer and professor Dr. Julio Fernández Bulté (now deceased).  Julio Fernández emphasized that we must now abandon the notion that the law is only instituted by the State.  He asserted that “society” (or the community) itself produces its own norms.

I don’t know if his father or the other professors (living or deceased) from Cuban law schools would agree with the thesis of the young doctor, but I loved listening to his arguments.