Legal pluralism and subjective rights: analytical approaches to a conflictive relationship

The relationship between legal pluralism and the notion of subjective rights is tense and deeply conflictive. Legal pluralism is based on the recognition of the coexistence of different regulatory systems within the same sociopolitical space, with the legal systems of indigenous peoples being one of its most visible expressions. These peoples have been recognized as having the right to self-determination, although this recognition is conditioned by a material limit: their legal institutions must not contradict the state legal system or internationally recognized human rights. This limit is not neutral, as it is defined by the modern notion of subjective rights. Historically, this notion has evolved from a political conquest to the affirmation of powers considered inherent to human nature. This discursive shift allowed for the consolidation of the centrality of the state, rendering interpersonal power relations invisible and subordinating the recognition and protection of rights to state authority. From this perspective, it becomes necessary to question the place of subjective rights within indigenous legal systems. The idea of rights, as configured in modernity, operates as a performative discourse that imposes itself as a material limit on other normative systems in contexts of legal pluralism. In this way, indigenous peoples are integrated into a conception of modernity designed by the state, ensuring that the state retains the final say on the validity and applicability of norms produced by legal systems other than the state.