An economic analysis of the Andean aylluXVI Annual Conference of the Latin American and Caribbean Law and Economics Association (2012)
AbstractModern Latin American constitutions and public law doctrine on the books recognize Native American legal institutions. However, in law in practice, the uneasy mix between recognition of Native American legal institutions and the civil legal order of mainstream Latin American societies, is haphazard and unclear. We argue that the economic approach to law is uniquely able to inform and clarify doctrinal debates about questions of choice of law between Native American legal institutions and the wider legal framework of society. The law of property and obligations consigned in the civil code establishes the legal framework in Latin American countries for a market economy. Yet, Native American populations in far off locations in the Andean region often live precarious lives at the edge of subsistence. In a decentralized market economy, the civil legal institutions of mainstream society lower information and incentive costs (the cost of not having adequate information and incentives) for private decision makers and actors. However, where the cost of implementing property rights and enforcing contracts is greater than the margin of surplus available within a community living at the edge of subsistence, an economic analysis suggests that centralized communal command-and-control mechanisms, such as those of the Andean ayllu, may be more efficient for these populations. Moreover, we argue that acquisitive prescription may be a useful and well-understood civil institutional mechanism to make the difficult transition between communal social organization and a market economy in the Andes region. The statute of limitations would run from the moment that a Native American community decides to deliver private possession, rather than communal tenancy, to its members. Experience with the reform of the Native American ejido in Mexico illustrates suggests that the alternative mechanism that has been implemented in Latin American countries is open to abusive practices. Native American populations need a significant lapse of time to adjust to the new legal arrangements of mainstream society. Therefore, we should not impute knowledge of legal practices and a market economy to Native American populations without the benefit of this long apprenticeship.
Citation InformationJuan Javier del Granado and Félix Huanca Ayaviri. "An economic analysis of the Andean ayllu" XVI Annual Conference of the Latin American and Caribbean Law and Economics Association (2012)
Available at: http://works.bepress.com/juan_javier_del_granado/73/