La Diversidad como Paradoja

Los puntos ciegos del derecho y su reconstrucción histórica

verfasst von: 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.
Externe Organisation(en): Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie
Typ: Artikel
Journal: Revista de Estudios Histórico-Juridicos
Band: 43
Seiten: 639-657
Anzahl der Seiten: 19
Publikationsdatum: 2021
Publikationsstatus: Veröffentlicht
Peer-reviewed: Ja
ASJC Scopus Sachgebiete: Recht, Verlauf
Elektronische Version(en): https://doi.org/10.4067/S0716-54552021000100639 (Zugang: Offen)

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",
}