CIPR | Center For Inter-American Policy & Research

Tulane University

Todd A. Eisenstadt Lecture Summary & Podcast

March 22nd, 2011

On March 17, 2011, the Center for Inter-American Policy and Research (CIPR) hosted a lecture by Dr. Todd A. Eisenstadt. Dr. Eisenstadt is the head of the Department of Government at American University and spoke knowledgably about the challenges of instituting customary law in modern societies in a presentation titled, “Dilemmas of Customary Law Recognition: Normative Issues Raised by Southern Mexico.”

Dr. Eisenstadt’s goal was to situate this discussion within a greater context of Latin American social and political issues concerning customary law, drawing from similar experiences in Bolivia and Ecuador and applying them to contemporary Southern Mexico. He defined customary law as the admittance of certain longstanding customs and tradition of a certain group into the political laws of the broader community. The normative issues raised in the aftermath of the recognition of customary law in Mexico mainly radiate from the juxtaposition of individual rights and customary rights. A dichotomy exists between the two sets of rights due to the inherent communal characteristics of many longstanding customs and traditions, or Usos y Costumbres. These longstanding traditions can often result in the violation of individual rights, especially in instances of gender discrimination.

Dr. Eisenstadt used Oaxaca, Mexico as his case study for analyzing the pressures and consequences of customary law recognition. In 1995, the Mexican government passed a Usos y Costumbres law, granting the recognition of communal rights for indigenous communities in the state of Oaxaca. According to Dr. Eisenstadt, this was done for a number of reasons, which include the attempt to avoid political polarization similar to that in the neighboring state of Chiapas and also to gain political leverage for the waning ruling party, the Institutional Revolutionary Party (PRI).

The advantages of customary law are plentiful, especially in the area of social capital. It allows for intimately known public officials and a strong sense of communal unity and pride. However, the recognition of customary law has not produced concrete positive results in the attempt to diminish post electoral violence and clientelistic practices. Drawbacks of customary law can be found in clashes with constitutional law based on the differences between traditional practices and individual rights. In addition, there have been difficulties in translating rulings concerning the protection of individual rights in Mexico City to sites of implementation and enforcement in Oaxaca. Due to these shortcomings, Dr. Eisenstadt concludes the current system is unsustainable and an alternative must be found in which individual and communal rights are mutually respected.

Listen to a podcast of the lecture here.

Lecture synopsis by: Marcelle E. Beaulieu