La Diversidad como Paradoja

Los puntos ciegos del derecho y su reconstrucción histórica

authored by: Manuel Bastias Saavedra
Abstract: This contribution argues that, in order to avoid cultural and essentialist fallacies, diversity can only be understood as paradox. Diversity has to be constructed and is therefore subject to temporal, regional, and functional variations, which makes it an extremely fluid category. One manner in which diversity is constructed is through law. While legal history has traditionally been concerned with the manner in which law has historically created differences of personal status, among legal categories, and between sources of law, legal historians of the contemporary world are confronted with the problem of how to observe cultural, ethnic, functional, and other forms of diversity which are not necessarily processed by law. The manner in which nineteenth-century legal systems ignored the particular experience and circumstances of indigenous populations is a case in point: how can the legal historian observe that which law does not? By understanding diversity as paradox, I will argue that a constructivist category of diversity will allow the legal historian to move between legal and non-legal sources without losing from sight the specificity of legal observation.
External Organisation(s): Max Planck Institute for Legal History and Legal Theory
Type: Article
Journal: Revista de Estudios Histórico-Juridicos
Volume: 43
Pages: 639-657
No. of pages: 19
Publication date: 2021
Publication status: Published
Peer reviewed: Yes
ASJC Scopus subject areas: Law, History
Electronic version(s): https://doi.org/10.4067/S0716-54552021000100639 (Access: Open)

BibTeX

@article{61536acdae3c4c33a835266c5b6d20d8,
title = "La Diversidad como Paradoja: Los puntos ciegos del derecho y su reconstrucci{\'o}n hist{\'o}rica",
abstract = "This contribution argues that, in order to avoid cultural and essentialist fallacies, diversity can only be understood as paradox. Diversity has to be constructed and is therefore subject to temporal, regional, and functional variations, which makes it an extremely fluid category. One manner in which diversity is constructed is through law. While legal history has traditionally been concerned with the manner in which law has historically created differences of personal status, among legal categories, and between sources of law, legal historians of the contemporary world are confronted with the problem of how to observe cultural, ethnic, functional, and other forms of diversity which are not necessarily processed by law. The manner in which nineteenth-century legal systems ignored the particular experience and circumstances of indigenous populations is a case in point: how can the legal historian observe that which law does not? By understanding diversity as paradox, I will argue that a constructivist category of diversity will allow the legal historian to move between legal and non-legal sources without losing from sight the specificity of legal observation.",
keywords = "Diversity, Law, Legal History, Systems Theory",
author = "{Bastias Saavedra}, Manuel",
note = "Publisher Copyright: {\textcopyright} 2021 Ediciones Universitarias de Valparaiso. All rights reserved.",
year = "2021",
doi = "10.4067/S0716-54552021000100639",
language = "Spanish",
volume = "43",
pages = "639--657",
journal = "Revista de Estudios Hist{\'o}rico-Juridicos",
number = "43",
}