# The Rights of Nature in the New Latin American Constitutionalism from the Perspective of Legal Anthropology : translation

Alice Brites Osorio de Oliveira

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Alice Brites Osorio de Oliveira. The Rights of Nature in the New Latin American Constitutionalism from the Perspective of Legal Anthropology : translation. 2018, 10.25965/trahs.921 . hal-05007637

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Translated from French by Alice BRITES OSORIO

* **Original French version:** Brites Osorio, A. (2018). Les droits de la nature dans le nouveau constitutionnalisme latino-américain à partir du regard de l'anthropologie juridique. *Trayectorias Humanas Trascontinentales*, (3). https://doi.org/10.25965/trahs.921

# The Rights of Nature in the New Latin American Constitutionalism from the Perspective of Legal Anthropology<fnref n="1" />

Alice Brites Osorio de Oliveira
Université de Limoges
Limoges, France

PhD Candidate in Legal History - Faculty of Law and Economics. Observatory of Legal and Institutional Mutations (OMIJ). European Human Rights Research Network (RERDH) – Deputy Treasurer. Deputy Director, Observatory on Conflicts, ALEC Network.

alice.brites-osorio-de-oliveira@unilim.fr

The article presented below offers a legal anthropological perspective on the rights of nature within the framework of the new Latin American constitutionalism. To do so, it considers the inclusion of two indigenous cultural expressions (*pachamama* and *sumak kawsay*) in the 2008 Ecuadorian Constitution from two perspectives:

1. The constitution-drafting process, particularly discussions surrounding the inclusion of the rights of nature through academic theories, popular demands, and the work of the Constituent Assembly members.

2. The Constitution itself, in which nature is recognized as a subject of rights, and where the relationships between nature and culture embedded in the constitutional text are highlighted.

Granting legal personhood to nature resulted from various popular movements as well as debates within the Constituent Assembly. Once incorporated into the Ecuadorian Constitution, the two aforementioned terms were modified to align with the constitutional text and its broader aspirations. The impact of this inclusion extends beyond geographical and disciplinary boundaries, even though the relationship between theory and practice reveals the need to overcome certain elements of a politico-legal framework that has persisted since colonization.

**Keywords:** new Latin American constitutionalism, 2008 Ecuadorian Constitution, legal anthropology, rights of nature.

<footnote n="1">¹ These studies are part of my research project under the direction of Professor Xavier Perrot, of the Observatory of Legal and Institutional Changes (OMIJ), Faculty of Law and Economic Sciences, University of Limoges – France</footnote>
## Introduction

The 2008 Ecuadorian Constitution has undeniably been recognized both nationally and internationally as an extremely innovative constitution, particularly because it incorporates, among other elements, Indigenous worldviews on ways of living and non-human entities—specifically, nature as a subject of rights. This marks a rupture with numerous paradigms of classical law. The process leading to this constitutional breakthrough involved extensive legal, political, and social transformations. In this introduction, we aim to highlight key elements of this journey that are essential to understanding our perspective, including the reasons for studying this topic from a legal anthropology viewpoint, the notion of constitutionalism, and the concepts of foundation and refoundation within the framework of new Latin American constitutionalism.

Constitutionalism entails the limitation of power and the supremacy of the law through the legitimacy and voluntary, spontaneous adherence of its subjects. While the term explicitly suggests the existence of a constitution, this association is not always mandatory (Barroso, 2015: 19). The expression "new Latin American constitutionalism" in the title of this article suggests that if a *new* constitutionalism exists, it must necessarily follow a *traditional* constitutionalism that preceded it (Viciano & Martinez, 2010: 9).

We will first clarify how legal scholarship defines the *foundation* of Latin American states, which is associated with a classical constitutionalism model. Then, we will outline the characteristics of what is known as the *refoundation* of states, which is linked to the new Latin American constitutionalism. Since this article focuses on the period of refoundation, this introductory section will provide key reference points regarding the *foundation* period of Latin American states and the accompanying constitutional, political, and legal culture.

The foundation of Latin American states initially involved independence movements from Spain and Portugal, which were notably inspired by the French Revolution and the independence of the United States. This moment of state "creation" was centralized, turning vast territories into peripheral regions and marginalizing large segments of the population along with their cultures and traditions. Throughout centuries of exploration and colonization, Indigenous peoples were devalued due to their cultural differences from their colonizers.

While the leaders of the independence movements sought to free themselves from colonial exploitation, their worldview remained largely shaped by Westernized cultural perspectives. Delfour observes that "[...] these foreign ideas were often championed by men who themselves came from elsewhere, such as Simón Bolívar, José de San Martín, and Antonio José de Sucre." (Delfour, 2005: 34). This overemphasis on importing and applying customs and traditions that did not correspond to local realities led to the consequence that "[...] Latin America was nourished by European elements selected for the purposes of colonization, which were ill-suited to the autonomous development of the New World." (ibid).

Furthermore, the emancipation from the Iberian Peninsula did not equate to an emancipation from the legal customs imported and established during colonization. The formation of Latin America's legal culture was rooted in a colonial extractivist economic past and the subsequent
construction of an elitist and dehumanizing socio-political system (Wolkmer, 2008: 19). Constitutions, like other laws, primarily represented the interests of a minority, adhering to a legal tradition that was "[...] bureaucratic, individualistic, erudite, and legalistic" (ibid). This institutionalized formula has endured as part of the region's legal culture: "Respect the law, but do not obey it" ("La ley se acata pero no se cumple"). This notion reflects a deep-seated perception that the law applies only to others (Delfour, 2005: 119).

Until the 20th century, the foundation of Latin American states followed a political-legal culture in which written law held great value. Despite notable advancements in constitutional development—where “[...] the new American republics adopted constitutions based on the principles of democracy and the rule of law well before European countries” (ibid: 21-22)—traditional Latin American constitutionalism produced “weak, adaptive, and rhetorical” constitutions (Viciano & Martinez, 2010: 9). These were also characterized by a disregard for peoples, traditions, and cultures that did not align with European or North American influences.

The context of state *refoundation*, a concept explicitly present in several constitutions<fnref n="2" /> that form part of the *new Latin American constitutionalism* movement, signals an intention to break away from the archaic classical constitutionalism that no longer meets the continent’s needs. As we will explore throughout this article, this phase of *refoundation* seeks to reverse the dynamic of the “concealment of the other” (Dussel, 1993) by incorporating Indigenous cultures into the constitutional framework.

Given that, in Latin America—particularly with the innovations introduced by Ecuador’s 2008 Constitution—law and culture are often intertwined and mutually constructed, analyzing these dynamics through the lens of legal anthropology is essential to understanding the processes of legal reconstruction and renewal in the South American context.

> "It is precisely the comparison between the legal system and the cultural system that enables a deeper understanding of the fundamental structures of the human condition from a legal perspective." (Broekman, 1993: 22)

Legal anthropology plays a fundamental role in the continuous evolution of human rights as both a theory and a practice (Goodale, 2017: 96), as it facilitates a deeper understanding of these rights and the dynamics of *inclusion and exclusion* (ibid: 119) within both written and customary legal frameworks.

Thus, our focus is particularly on two key elements present in the Ecuadorian Constitution: the legal representations of *Pachamama* and *Buen Vivir* (also referred to as *Vivir Bien* or *Sumak Qamaña* in Bolivia's 2009 Constitution). Our analysis will examine these two references through the lens of legal anthropology from two perspectives:

1. The constitution-drafting process in Ecuador, particularly the debates on the rights of nature among theorists, popular movements, and the Montecristi<fnref n="3" /> Constituent Assembly.

<footnote n="2">² In the Constitution of Ecuador of 2008 and in the Constitution of Bolivia of 2009</footnote>

<footnote n="3">³ Montecristi is a city located in Ecuador, in the province of Manabí, where the Ecuadorian Constitution of 2008 was drafted and approved.</footnote>
2. The content of the Ecuadorian Constitution itself, which recognizes nature as a subject of rights and highlights the relationships between nature and culture within its constitutional text.

# 1. State Refoundation and the Inclusion of Indigenous Knowledge in the Constitution

Following the independence of Latin American states, the region experienced, among other events, the consequences of both World Wars, the succession and end of military coups, popular movements advocating for Indigenous rights, women's rights, and animal rights<fnref n="4" />, as well as various protests<fnref n="5" /> against the neoliberal economic regime imposed in these countries. These events are recognized as contributing to the emergence of a new phase of Latin American constitutionalism: a movement toward the refoundation of states.

The gradual consolidation of new rights in South American constitutions reflects a constitutionalism that embodies a political process of social transformation (Viciano & Martinez, 2010: 9). This is evident in the Constitutions of Brazil (1988), Colombia (1991), Paraguay (1992), Venezuela (1999), and, ultimately, Ecuador (2008) and Bolivia (2009).<fnref n="6" />

Viciano and Martinez (ibid.) highlight that the scope<fnref n="7" />, originality, inclusion of diverse peoples, and interest in revolutionary ideas characterize this new constitutionalism. Furthermore, particularly since Ecuador's 2008 Constitution, South American constitutionalism has also redefined legal frameworks based on local cultural elements and the ways in which Indigenous peoples interact with non-human entities. The Ecuadorian Constitution, also known as the Montecristi Constitution, was the first to recognize a relationship between humans and non-humans that diverges from classical constitutional models by granting nature the status of a subject of rights.

Naturally, such a legal innovation could not emerge overnight. Beyond the political and social demands that shaped this transformation, the debates within the Constituent Assembly were crucial to the consolidation of these rights within the Constitution. According to Viciano and Martinez (2010: 9), Constituent Assemblies serve as the driving forces of this movement. Understanding the stakes involved in the law-making process—political as well as legal—stemming from the Montecristi Constituent Assembly is essential to comprehending how the Rights of Nature were established in Ecuador's current Constitution.

In the following section, we will first examine the aspirations for the inclusion of new rights as reflected in academic discourse and social movements, which intensified from the late 1990s

<footnote n="4">⁴ Zaffaroni (2011: 62) argues that the inclusion of the rights of nature in constitutions was made possible, among other things, by developments in the field of animal rights.</footnote>

<footnote n="5">⁵ In Quito (Ecuador), Cochabamba and La Paz (Bolivia), Buenos Aires (Argentina), and Rio de Janeiro (Brazil), people are revolting against the denationalization of their economies and the wave of unemployment and bankruptcies. To better understand the protests against the neoliberal regime in South America, see the documentary Tendler, S. (2015). «Encontro con Milton Santos ou O mundo global visto do lado de cá». Caliban produções cinematográficas [ed.].</footnote>

<footnote n="6">⁶ We emphasize the last two Constitutions cited because it is from the Ecuadorian Constitution, the object of our study, that the rights of Nature are recognized.</footnote>

<footnote n="7">⁷ According to them, from this new stage of constitutionalism, the Constitutions are more extensive and detailed.</footnote>
onward (A). We will then analyze the drafting process of Ecuador’s 2008 Constitution through
the Montecristi Constituent Assembly, focusing particularly on the consolidation of the Rights
of Nature (B).

A- (Re)Thinking Law in South America

"It is often overlooked that law is, above all, a mode of thinking within and about culture: law is essentially a cultural element. This fact is frequently forgotten when the focus shifts to the technicalities of legal action, or when law is misused — often wrongly — as a hollow argument to legitimize ad hoc or ad hominem regulations. Yet, this perspective also presents a challenge: the need to conceive law as culture." (Broekman, 1993:13)

For much of the past century—and within the context of this article—the act of conceptualizing Latin American law has often been both short-sighted and complacent. Short-sighted, because the vast array of possibilities and actors within the Latin American legal landscape have long been ignored in favor of the interests of a political minority, economic elites, and a legal framework shaped exclusively by foreign jurisprudential models. Complacent, because since colonial times, there has been a deeply ingrained tradition of importing laws from Europe or the United States—sometimes even laws that were already “[...] on the verge of extinction in the metropolis” (Delfour, 2005: 34)—with little to no effort to adapt them to local realities or to develop an authentically Latin American legal philosophy.<fnref n="8" /> Furthermore, beyond merely importing foreign laws and ideals, Latin America has historically distorted these elements in practice:

> "In the aftermath of the wars of independence, Latin American political life — except for a few exceptions — became a constant negation of the very principles it claimed to uphold. Pronunciamientos, coups d'état, rigged elections, caudillismo, caciquismo, dictatorships... the political vocabulary revolved less around democracy than around its absence. This paradoxical situation confirms the persistence of a society that was far more traditional than its European counterpart, where enlightened oligarchies could appear more modern in their ideas precisely because they remained deeply rooted in patrimonial social structures." (Delfour, 2010: 168)

The idea of developing a legal system *for* and *by* Latin American states emerged only tentatively during the period of classical constitutionalism. With the rise of new constitutionalism, however, the effort to rethink law took on a genuinely dynamic and creative form—one that was ready to acknowledge the cultures and actors present before the foundation of the nation-states and to reassess how the legal domain could embody both the oldest and most contemporary aspirations of Latin American societies.

To understand the relationship between law and its subjects, legal anthropology frames law as a mode of regulation. From this perspective, law can be seen as a system that structures *inclusions* and *exclusions*, ultimately shaping the behaviors and ways of life within each society (Goodale, 2017: 119).

<footnote n="8">⁸ Like the incorporation of social rights by the Mexican Constitution of 1917.</footnote>
Since the colonization of the Americas, the relationship between humans and nature has been understood through an extractivist lens—that is, through the domination of nature by humans — an approach that remains prevalent in many sectors of society today (Acosta, 2010: 17). Using the framework of *inclusion and exclusion* (Goodale, 2017: 119), we can observe that many of the rights considered today as “new rights” are, in fact, not new at all; they have long been concealed, disregarded, and consequently excluded from legal texts (Murcia, 2011: 292; Goodale, 2017: 119). This exclusion has been structurally upheld by at least two key factors:

1. The ideological imports that shaped Latin American nations:

> "The main ideological exports from Western Europe and/or the United States to Latin American countries have included: Christianity, through the Spanish colonial system, followed by, successively and through non-coercive means, Enlightenment ideas, positivism, Marxist ideologies, and, more recently, neoliberal conceptions. With regard to Enlightenment ideas, it was the French and North American concepts of nationhood, the nation-state, modernization, nationality, and nationalism that were exported." (Delfour, 2005: 61)

2. The articulation, according to Quijano (apud Acosta, 2010: 12), between the concept of "race" as a foundation for social domination, the classical capitalist model, the state as a universal authority figure, the nation-state model derived from this structure, and the understanding of Eurocentrism as the sole legitimate source of knowledge production.

Discussions on Indigenous rights and legal pluralism emerged as a result of critical thought developed since the late 1980s, combined with widespread popular mobilization across the continent, the findings of truth commissions, and post-dictatorship transitional mechanisms. These factors ignited extensive debates on the inclusion of Indigenous worldviews in legal systems. It was within the framework of Ecuador's 2008 Constitution that Amerindian cosmovisions were fully incorporated into a constitutional text.

However, these constitutional advancements were not solely the product of Indigenous movements and their demands; they were also the result of the efforts of legal scholars, activists, and environmental rights advocates (Tanasescu, 2013).

Still, aspirations for a more identity-based approach to law could not have led to a real consolidation of legal rights without the work of a Constituent Assembly — one of the first steps toward "[...] a constitutionalism that is robust and expansive, not only in its expectations but also in its social impact." (Viciano & Martinez, 2010: 9).

**B- Legal, Cultural, and Political Issues in the Development of a New Constitutional Thought**

The elements that marked the beginning of a new phase of Latin American constitutionalism from the 1990s — effective rights protection, regional integration efforts among neighboring countries, and the incorporation of new forms of state organization — led to significant constituent movements (Viciano & Martinez, 2010: 11).
In this transitional phase between old and new constitutionalism, the constituent power and the constituted power engaged in dialogue (ibid: 12). This dialogue is particularly evident in the Ecuadorian case, within the Montecristi Constituent Assembly (2007/2008).

This section will analyze how this Assembly structured, codified, and translated the aforementioned expectations into constitutional law, particularly through the inclusion of the Rights of Nature in the drafting process of the 2008 Constitution.

The meetings of the Montecristi Constituent Assembly were divided into ten thematic tables: 1. fundamental rights and constitutional guarantees; 2. organization, citizen participation, and social representation systems; 3. structure and institutions of the State; 4. territorial organization and allocation of powers; 5. natural resources and biodiversity; 6. labor, production, and social inclusion; 7. development regime; 8. justice and the fight against corruption; 9. sovereignty and international relations; 10. legislation and oversight.<fnref n="9" /> The roundtable that concerns us here is Table 5, dedicated to natural resources and biodiversity.<fnref n="10" />

The intention to include the rights of nature in the proposals of Table 5 actually began about five months after the establishment of the Constituent Assembly. According to the president of this Assembly, Alberto Acosta, in an interview conducted by Tanasescu (2013: 4), this idea was put on the agenda at the beginning of 2008 when a group of citizens suggested to the Assembly the inclusion of animal rights. This suggestion was one of the factors that triggered the discussion on the possibility of including the rights of nature. Shortly after this event, Acosta published two articles in support of the rights of nature<fnref n="11" />: *¿Tienen derechos los animales? (Do Animals Have Rights?*) and *La Naturaleza como sujeta de derechos (Nature as a Subject of Rights)*, in which he discusses the existence of a "consumerist egotism"<fnref n="12" /> (Acosta, 2008: online) in contemporary society, where nature is viewed merely as an object<fnref n="13" />.

In the second article, Acosta also asserts that achieving an "Earth democracy" requires recognizing the harmony between human rights and the rights of other natural communities of the Earth; allowing ecosystems to have rights, enabling them to exist and follow their own life cycles; granting intrinsic value to life as it expresses itself through nature; and acknowledging the inherent worth of ecosystems, independent of their usefulness to human beings (Acosta, 2008: online).

Tanasescu notes that the article *La naturaleza no es muda* (Nature Is Not Mute), published shortly thereafter by Eduardo Galeano (2008, online), sparked—precisely as intended—formal debates during the Constituent Assembly meetings (2013: 4). The article discusses the idea of nature as a subject. The author supports the discussion on including the rights of nature in

<footnote n="9">⁹ In these round tables, the participation of members of society (citizens as well as groups and organizations) was accepted.</footnote>

<footnote n="10">¹⁰ This is where most of the discussions on the rights of nature took place.</footnote>

<footnote n="11">¹¹ Quoted in English: “Do Animals Have Rights? » and “Nature as a Subject of Rights” (Tanasescu, 2013: 4).</footnote>

<footnote n="12">¹² "Egolatría consumista." Our translation. In this section, Acosta also argues that in the past, slaves, children, and women experienced this same condition of object instead of being treated as subjects of rights. 19 April 27, 2008.</footnote>

<footnote n="13">¹³ An example is the sentence "Nature has much to tell us" (Galeano, 2008, online).</footnote>
Ecuador's Constitution: "There is nothing strange or abnormal about the project that seeks to integrate the rights of nature into Ecuador's new Constitution."

This article had a significant impact both inside and outside the Constituent Assembly<fnref n="14" /> meetings. This point was later taken up by members of the Assembly (Tanasescu, 2013: 6), who argued that this global innovation would establish Ecuador as a pioneer in the recognition of the rights of nature.

"We are embarking on a path that will show all of Latin America that here, in this Andean country, as they call us, in this small country that is Ecuador, we can contribute to the evolution of global constitutional law." (Asamblea Constituyente, 2008: 49).

There is no doubt that the argument of originality and the fact that Ecuador was the first country in the world to grant rights to nature in its Constitution played a decisive role. Through these insights into the behind-the-scenes process of consolidating the rights of nature within the Constituent Assembly, we observe that granting *Pachamama* the status of a subject of rights was not solely the result of social demands and the recognition of Indigenous cosmovisions. The "persuasion work" (Tanasescu, 2013: 7) carried out both within and outside the Constituent Assembly played a crucial role and was essential for the inclusion of this new element—indeed, one of the key elements—of the new Latin American constitutionalism.

## 2. *Pachamama* and *Buen Vivir*: Indigenous Elements in the Constitutions of Ecuador and Bolivia

The result of social demands and the construction of dialogues within the Constituent Assembly, as observed in the previous section of this article, is reflected in the preamble of Ecuador's 2008 Constitution:

"WE, the sovereign people of Ecuador, RECOGNIZING our millennial roots, forged by women and men from different peoples, celebrating nature, the Pachamama, of which we are a part and which is vital for our existence, INVOKING the name of God and acknowledging our diverse forms of religiosity and spirituality, RELYING on the wisdom of all cultures that enrich us as a society, AS HEIRS to the social struggles for liberation against all forms of domination and colonialism, and with a deep commitment to the present and the future, We decide to build a new form of citizen coexistence, in diversity and harmony with nature, to achieve Buen Vivir, sumak kawsay." (Ecuador, 2008: 7-8).<fnref n="15" />

<footnote n="14">¹⁴ E. Galeano's article also had a great impact on debates and meetings outside the Assembly.</footnote>

<footnote n="15">¹⁵ Preamble of the Ecuadorian Constitution. "NOSOTRAS Y NOSOTROS, el pueblo soberano del Ecuador // RECONOCIENDO nuestras raíces milenarias, forjadas por mujeres y hombres de distintos pueblos, CELEBRANDO a la naturaleza, la Pacha Mama, de la que somos parte y que es vital para nuestra existencia, INVOCANDO el nombre de Dios y reconociendo nuestras diversas formas de religiosidad y espiritualidad, APELANDO a la sabiduría de todas las culturas que nos enriquecen como sociedad, COMO HEREDEROS de las luchas sociales de liberación frente a todas las formas de dominación y colonialismo, y con un profundo compromiso con el presente y el futuro, Decidimos construir // Una nueva forma de convivencia ciudadana, en diversidad y armonía con la naturaleza, para alcanzar el buen vivir, el sumak kawsay". Our translation.</footnote>
Clearly, multiple elements within this preamble could be the subject of further study. However, as indicated in our introduction, we will focus our analysis on the inclusion of the terms *Pachamama* and *Buen Vivir*, or *sumak kawsay*, in the Ecuadorian Constitution. These two terms are closely linked to the relationship between human beings and the environment, introducing a new conception of development, a break from anthropocentric paradigms, and the possibility of plurinational participation. For South American countries that adopt these principles<fnref n="16" />, it is within this paradigm that public policies promoting economic and social development must be formulated.

*Sumak kawsay*, or *Buen Vivir*, reconsiders Ecuador’s legal and political paradigms, enabling a transformation of state activities toward an integrated understanding of the relationship between humans and the environment. According to Zaffaroni (2010:120), *Buen Vivir* encompasses not only the common good of humanity but also the well-being of all living beings, shifting from an individualistic perspective to one of collective collaboration.

Thus, both the Ecuadorian and Bolivian Constitutions develop the notion of environmental protection through law, complementing universal declarations such as the 1972 Stockholm Convention. For instance, the Ecuadorian Constitution (Ecuador, 2008) grants *Pachamama* the right to the full respect of its existence and the maintenance and regeneration of its life cycles, structure, and evolutionary processes (Art. 71). It also establishes sustainable development as a duty of the state (Art. 3, point 5) and recognizes the population’s role as a protector of nature (Art. 74).

Behind the legal principles enshrined in Ecuador’s 2008 Constitution lie reflections on ways of life and cosmovisions that have existed since precolonial times, yet had never been represented in a legal text. At the same time, this legal discourse also involves the renewal and adaptation of these onthologies into a constitutional framework suited to contemporary life.

This second section will explore these articulations. It will first present the anthropological concepts shaping the nature/culture relationship as reflected in certain constitutional articles in their original form (A). This will then serve as the basis for analyzing the codification and adaptation of pluralistic visions of Nature and *Buen Vivir* within the legal text (B).

## A- The Nature-Culture Relationship as Reflected in Constitutional Texts

"Anthropology and the symmetrical perspective it teaches us to adopt toward these phenomena also allow us to see that our idea of nature is fundamentally a social and political concept, even if it seems to have been shaped to separate itself from such influences." (Charbonnier, 2015: 273)

In the legal framework, the notion of the relationship between humans and nature is almost inseparable from the understandings shaped and disseminated by urban (or increasingly urbanized) societies, where non-human entities are generally regarded as objects or resources. The law itself is used to define what nature is and to establish its market value — emphasizing, in most cases, that this economic value is the only one that can be attributed to it. This

<footnote n="16">¹⁶ This is the case of Ecuador and Bolivia.</footnote>
demonstrates that the relationship between law and "things" can be understood as part of the
process of legal fabrication (Goodale, 2017: 119).

From this perspective, how can we escape the logic of representing nature as a legal subject
without considering society's visions? Such an intention would obviously be naïve, as law —
even when intended for other living organisms—is always written by humans. Fortunately, this
was not the approach taken by Ecuador's Constitution. The recognized intent behind this
Constitution was not to impose a perspective detached from human societies but rather to
incorporate a vision that goes beyond the naturalist approach of classical law — one that brings
together the diverse perspectives present within Ecuadorian society.

The terms Pachamama and sumak kawsay carry multiple meanings for Indigenous peoples, as
each community may have its own understanding of what nature is and what it means to live
well. But what do these words actually encompass?

In the Quechua and Aymara languages, the term *pacha* means both “earth” in the sense of space — including all elements of the planet (landscapes, water, atmosphere, humans, and non-humans), and even the universe — as well as “time.” This concept of time, as understood by tribes such as the Achuar (Descola, 2014) and others, differs significantly from the linear time perceived and used in Western societies.

> “Europeans introduced a different conception of time. While Indigenous temporality is circular and cyclical, for the colonizers, it is linear and historical. Maria Rostworowski de Diez Canseco highlights the lack of interest among Andean populations in chronology and the precise recording of past events. She also notes their ability to erase from collective memory those elements they do not consider worthy of remembrance, including the existence of a leader whose memory they deem unnecessary to preserve.” (Delfour, 2005: 93)

In some Andean cultures, Pachamama can be understood as the cosmos; in others, she appears
as a personified deity, accompanied by her spouse and children. Thus, there is no single,
homogenous understanding of nature. Consequently, the relationship each community has with
its own “version” of Pachamama is also heterogeneous, as each defines its own particularities
regarding the use of nature (Gudynas, 2011: 264).

These varying conceptions of nature also shape different understandings of sumak kawsay. The notion of *Buen Vivir* differs from tribe to tribe, and "living well" or "living in harmony" can be defined in multiple ways. Ecuador, therefore, presents a diversity of relationships between nature and culture due to the multiplicity of existing tribes and communities. For this reason, Acosta (2010: 11) recognizes Buen Vivir as a category that is in constant construction and reproduction.

However, within these multiple interpretations of Pachamama and sumak kawsay, it is possible
to identify characteristics of a social matrix grounded in communal values and “a deep-rooted
connection to the sacred, not in the religious sense of Western culture, but in a sense that regards
the sacred as something worthy of respect.” (Martinez, 2011: 10).
This leads us to consider that the use of these terms in constitutional discourse would only be
possible in an adapted form, based on general elements drawn from the multiple interpretations
of Pachamama and sumak kawsay. The reformulation of these understandings for their inclusion
in the 2008 Constitution, however, has sparked criticism, particularly regarding their
romanticized and transformed use within environmentalist discourse.

B- The Use of *Pachamama* and *Sumak Kawsay* in the Constitutional Text

"Each constitution synthesizes a historical moment. In every Constitution, accumulated social processes crystallize. And in every Constitution, a certain way of understanding life is incorporated." (Acosta, 2010: 5)

The Andean cultural elements incorporated into the constitutional text have taken on a renewed
form due to the necessity of harmonizing them with other contemporary ideals, the recognition
of the need to value and respect multiple forms of coexistence, the existing pluralism in
Ecuador, and the evolution of discussions on the inclusion of the rights of nature during the
constitutional process. Acosta supports this idea by stating that the concept of Buen Vivir "is
also based on universal philosophical principles: Aristotelian, Marxist, ecological, feminist,
cooperative, humanist..." (ibid., p. 13).<fnref n="17" />

According to Acosta, the Ecuadorian Constitution of 2008 broke away from the classical legal
doctrine that establishes a hierarchy among norms. Thus, this Constitution does not prioritize
the rights of *Buen Vivir* over other rights; on the contrary, all rights enshrined in its 444 articles
hold the same legal value (ibid.: 6). Similarly, the understanding of *Buen Vivir* and *Pachamama*,
as presented in the constitutional text, does not exclude other interpretations of cosmovisions
existing within Ecuador's diverse communities.

In the approved constitutional text, it is worth highlighting that the words *Pachamama* and *sumak kawsay* are neither translated nor italicized (as is customary for foreign vocabulary); they hold the same status as Spanish terms. This practice reaffirms the idea of including cultures that were once marginalized.

"Sumak kawsay is born from the social periphery of the global periphery and does not contain the deceptive elements of conventional development. [...] The idea comes from the vocabulary of peoples once entirely marginalized, excluded from respectability, whose language was considered inferior, uncultured, incapable of abstract thought, and primitive. Now, their vocabulary enters two constitutions."<fnref n="18" /> (Tortosa, 2009: 3)

Due to this peripheral or marginal condition, Zaffaroni (2011: 116) acknowledges the possibility
of criticisms regarding the mention of *Pachamama* in the Constitutions, reducing it to the status
of "[...] an unoriginal archetype" (ibid.). Conversely, the positioning of nature in relation to
human beings in Ecuador's 2008 Constitution differs from all other foreign and/or international
laws and introduces a new way of understanding fundamental rights.

<footnote n="17">¹⁷ As we see in the preamble of the Constitution.</footnote>

<footnote n="18">¹⁸ These are the Constitution of Ecuador and that of Bolivia (which uses the term *suma qamaña*).</footnote>
In the case of human environmental rights, for example, legal frameworks traditionally allow for restitution only when environmental damage affects human beings. However, under the biocentric perspective adopted in the 2008 Constitution, in matters of nature's rights, the central subject is *Nature* itself, which also includes human beings.

Respect for Pachamama, however, does not imply a prohibition on human activities such as agriculture or livestock farming. Rather, the protection of nature entails safeguarding the maintenance of its life systems (Acosta, 2010: 19-20), as it is “[...] a universal element that complements, corresponds with, interacts with, and sustains reciprocal relationships” (Santamaría, 2011: 218).

Finally, the cultural principle of Buen Vivir in the constitutional text and based on solidarity and equity, reflects an openness toward international integration, particularly with Latin American countries—an integration explicitly recognized as a constitutional objective (Acosta, 2010: 27). The characteristics discussed so far contribute to defining a new constitutional identity, reinforced by what has been described as “*the most Ecuadorian Constitution in history*” (ibid.).

Conclusion

In light of the analysis presented, two fundamental considerations emerge: first, the influence of the innovations of Ecuador’s 2008 Constitution beyond its borders; and second, the necessity of transcending the prevailing Latin American politico-legal framework inherited from the colonial period.

The legal innovations introduced by Ecuador’s Constitution regarding the deep respect for nature have, since 2008, extended beyond geographical and disciplinary boundaries. In terms of geographical influence, this Constitution has served as both a catalyst and an inspiration for the inclusion of the rights of nature in the legal frameworks of other countries — such as Bolivia’s 2009 Constitution, regional constitutions in Mexico, and municipal ordinances in the United States (Global Alliance for the Rights of Nature, 2018: 1).

From a disciplinary perspective, the reconstruction of an alternative legal thought has also been explored in other fields of knowledge, including psychology, social sciences, and economics. This expansion has been accompanied by the rise of public policies and diverse initiatives that fuel an intensifying global debate every year (Acosta, 2010: 15).

However, despite significant legal advancements, much remains to be done. One of the greatest challenges lies in harmonizing theory with practice. Examining Ecuador’s Constitution through the lens of legal anthropology within the framework of new Latin American constitutionalism requires considering not only the letter of the law but also the country’s politico-legal culture, where legal texts sometimes amount to little more than formalism. The gap between theory and practice often creates a complex and contradictory scenario. For instance, Ecuador enshrines the protection of nature’s life cycles in its legal framework, yet illegal extractivist activities persist — highlighting the tensions between legal ideals and on-the-ground realities.
The colonial remnants of this tradition of disregarding written laws reveal the existence of a
juridico-cultural dynamic so deeply ingrained that it will take much more than a decade to
change. These dynamics have yet to be replaced by actions and reflections — across all social
sectors — outside the framework of the imposed neoliberal international development model.

In this sense, perhaps somewhat utopically (just as the idea of granting rights to nature seemed
before 2008), but without straying from anthropological reflections, we return in this conclusion
to the meaning of *pacha* as *time* — the respect for the proper moment to prepare the land, to
sow, to see it germinate, and to harvest its fruits. These stages are not simultaneous moments.
Just as this concept of time is understood in the logic of *Pachamama*, it is necessary to respect
this temporality concerning its rights — the rights of nature. Yet, even as we acknowledge this
need for time, we can already see that some of its fruits have been harvested over the past
decade.

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