El enfoque diferencial étnico como criterio articulador de la justicia ordinaria y la jurisdicción especial indígena en Colombia

Abstract

The acknowledgment of the cultural diversity as a trend in Latin America, along with the constitutionalizing of rights as a state prerogative, sets the need to analyze the tensions generated by the indigenous people worldview. In this case, the generalized assessment of the hegemonical national system that tends to homogenize and eliminate special jurisdiction systems is the focus. This is evident in principles such as legal and cultural pluralism, proposing the recognition of intercultural consensus criteria. The previous with the goal of coexistence between two different regulatory systems being possible in the same territory, avoiding the violation of indigenous people’s fundamental rights in terms of their jurisdictional autonomy. Therefore, this research study investigates the tensions that arise between the two regulatory systems, the national and the indigenous, from a hermeneutic interpretive approach. The purpose is to identify the most relevant aspects to consider when implementing a legislative strategy that allows the establishment of synergy between the two jurisdictions. In Colombia’s case, the ethnic claims have achieved the recognition and materialization of the right of people’s self-determination through the consolidation of a special indigenous jurisdiction, as a result of the historical struggles of more than two centuries.