This Article attempts to describe certain characteristics of Latin American legal culture that have jurisprudential implications and to inquire into certain themes of jurisprudence in the context of these cultural characteristics. A syncretic approach to jurisprudence may allow Latin American countries to formulate ideas about, and potential solutions to, widely recognized fundamental problems in their legal systems. Section I of this Article examines four conflicts between law and society in Latin America: 1) the conflict between the customary law of the informal sector and formal law, 2) the conflict between the bureaucratic ideal of the civil law judge and the heterogeneous, evolving social realities in Latin America, 3) the widespread evasion of formal law in Latin America, often to accomplish socially and economically desirable transactions, and 4) the de facto legitimacy of non-constitutional governments and the laws they enact as a longstanding tradition in Latin America. Section II of this Article uses these conflicts as a basis for making fundamental inquiries into the nature of law in Latin America. Section II also compares certain dominant themes in the jurisprudence of the United States with Latin American jurisprudence and identifies the fundamental distinction between the two legal cultures: the idealist, philosophical approach of Latin America as opposed to the pragmatic, anti-philosophical approach of the United States. Section II further posits that while Latin American thinkers may be uncomfortable with explicit recognition of North American realist thought and other North American schools of jurisprudence, certain parallels are apparent and borrowings may be productive. Section III provides concluding observations.
Anglo-American Jurisprudence and Latin America,
20 Fordham Int'l L.J. 50
Available at: http://ir.lawnet.fordham.edu/ilj/vol20/iss1/3