Flags of struggle and correction of the legal culture.

I intend to reflect on how humans create and accumulate culture, and how these efforts influence law and are exemplified by concrete actions driven within a specific legal environment.

To elaborate on this idea, I would like to take two examples. On the one hand, the efforts of Professor Pablo Alarcón Peña (Director of the Graduate School of Law at the Universidad Espíritu Santo) to promote what he has called a Culture of Legality [1]. That, in the terms outlined by him, it would imply the establishment of a kind of general framework under which to unify the actions tending to implement a new standard of correction within the local legal practice with which it would seek to counteract the ethical deformations that have been evidenced within the Ecuadorian justice system from recent cases of judicial corruption; such as Metastasis, Purge, and others [2]. On the other hand, the initiative of the Constitutional Court of Ecuador to promote, through academic events and the development of technological tools, what they have called a "new culture", also serves as an example. culture of judicial precedent [3]; The aim is to make operators more aware of the use of constitutional jurisprudence in the country.

In both examples we see common traits: the use of flags of struggle, or macro labels, with the intention of arousing feelings among peers and provoking a change in the imaginary of legal operators. I believe this points to something profound, and that is precisely what I want to emphasize: the way in which culture is constructed, disseminated and modified within the human species. Understanding this can help us to better understand the role that initiatives such as those mentioned above have in the cultural evolution of man and, more specifically, of law. In the following lines I will give an outline of the ideas at stake in this matter.

The generation of culture in the human being and in the law

To understand how culture is generated in human beings, we must refer to different disciplines of knowledge that emphasize the role of the construction of culture in man, and the way in which humans modify and adapt our environment based on our ideas. Moreover, this cultural construction would be happening over time, refining and accumulating, until building the orders around which humans organize and define themselves. One of these would be law and, within law, there would be sub-orders or sub-manifestations that in turn nurture the specific way in which humans understand and apply it.

This postulate is based on the observation that, throughout its history, human beings have tended to create imaged orders: networks of ideas and beliefs that allow you to “cooperate effectively and forge a better society”.” [4]. This is corroborated by a long tradition of anthropological studies that explain the different ways in which humans forge their culture. Thus, for example, the theory of cumulative cultural evolution [5] teaches that the evolution of human culture can be viewed as a series of successive modifications stacked over time that “exceed what any single person could create alone.” [6], so that «beneficial ideas and inventions are selectively preserved and accumulated in number and effectiveness over generations”.” [7]. On the other hand, the theory of the construction of niches determines that man, in his cultural activity, moves within cognitive niches, These are understood as a set of “epigenetic, social, ecological, epistemic and symbolic characters inherited by an organism as necessary resources for its development”. Therefore, the evolution of the human being implies the construction and adaptation of spaces to develop from a moral and intellectual point of view. [8], The environment, i.e. “a network of continuous interactions between individuals and the environment, in which people alter and modify it by mimetically externalizing passing thoughts, private ideas, etc.”.” [9].

From psychology and neuroscience, on the other hand, it has been pointed out that people bond by means of shared cultural patterns [10] with which it “perceives and acts in group- and context-specific ways”.” [11]. While with the theory on the affective construction of niches emphasis is placed on the active role of human beings in the construction of their own environment and the relationship between their cognitive conditions and the cultural artifacts that shape them. [12]. This has led to the hypothesis of the social motivation which understands that man is influenced by a “set of psychological predispositions and biological mechanisms that condition the individual”.” [13].

The Ecuadorian philosopher Bolívar Echeverría was able to reflect on these issues in his book Definition of culture 2001 in which he concluded, from an anthropological anchorage compatible with the one explained here, that “culture is the self-critical moment of the reproduction that a given human group, in a given historical circumstance, makes of its concrete singularity; it is the dialectic moment of the cultivation of identity”.” [14]. This implies “going out into the open and testing the validity of the individualizing subcoding [...] it cannot be anything other than a putting into play, a de- and re-substantialization or a systematic de- and re-authentication of the subject.” [15].

In law we would note the manifestation of this by realizing the cultural production and evolution that occurs within law itself, sub-grouping into different niches whose content may vary according to the cultural background from which they have emerged. A recognition of this could be seen in the work of Professor Alarcón Peña who, in his 2018 study on comparative law, sketched the way in which the dominant strands of law in the world tend to group themselves under common models or legal families, as the common law, Roman-Germanic system, Islamic law, among others. [16]. Likewise, there are works of various jurists who have studied the different cultures, heritages, or customs that influence the legal (e.g. legal positivism, formalism, critical studies, etc.). [17].

It is clear that law is a cultural product that in turn generates cultural by-products. The big question is: how do we go from the concrete actions of individuals to their ascription to macro systems, how is culture forged in the legal sphere? In the answer to this lies the very importance of initiatives such as that of the Culture of Legality.

De- and re-authenticating the law

This brief account of ideas shows how important the construction and promotion of culture is for human beings. And this is not a statement to be taken lightly; behind it we find a wealth of theories about its implications in the evolution and psychology of human beings. After all, human beings are motivated to group and work together; this is essential for their survival. And the most effective way to work together is to share common beliefs and convictions. As these ideas are shared and assimilated by large groups of people, culture is created. And culture will not only shape the lives of humans and the way they relate to their environment and themselves, but will constantly be refined and refined. 

There is no cultural construction that remains static. Just as man modifies the natural environment around him, he also modifies the accumulation of ideas and patterns around which he moves. Therefore, and as Bolívar Echeverría would put it, culture involves self-criticism and is a test of the codification of the patterns that man assumes for himself. In a certain way a work dialectic of identity cultivation, as Echeverría would also say, which implies that there must be counterpoints: the culture that is vs. the culture that can be. And from the clash between the two will emerge the culture that we will assume as current. But this cannot happen if people do not agree on common ideas, and agree enough to raise those ideas in struggle. And, as with anything that involves decision making, the outcome may not always be the desired one, and harmful cultural systems may prove triumphant in particular environments (e.g. narco culture), Creole liveliness, etc.). But I think that this is where Professor Alarcón's statement that the Culture of Legality is a antidote for the corruption entrenched in Ecuador's law. Behind this statement lies the idea that culture can only be replaced with culture (and, indeed, that is what science shows us is happening!). Perhaps in Ecuador we have not emphasized this enough and it would seem that Historically, we have neglected the work of cultural construction necessary to change ingrained patterns; that is, the living way in which culture is promoted, replicated and, finally, assumed by individuals.

Creating culture is a matter of many. Of manifesting ideas publicly, and having others accept them. And that is why initiatives such as those of Professor Alarcón and the Universidad Espíritu Santo, or the Constitutional Court of Ecuador, are so important and have the potential to re-authenticate local law because they generate spaces to discuss ideas, refine them, and finally reach points of consensus. This is the essence of creating a legal culture.

Bibliography

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 [2] vid. EDITORIAL. Ecuador | Operation Metastasis: 3 keys to the mega-operation against drug trafficking and corruption that took place in the South American country - BBC News Mundo. BBC News World [online]. December 14, 2023 [accessed April 19, 2024]. Available at: https://www.bbc.com/mundo/articles/cp932zvr02zo; LOAIZA, Yalilé. Purge case in Ecuador: ex-legislator and high-ranking judicial officials arrested in anti-corruption operation. infobae [online]. March 4, 2024 [accessed April 19, 2024]. Available at: https://www.infobae.com/america/america-latina/2024/03/04/caso-purga-en-ecuador-arrestaron-a-un-exlegislador-y-a-altos-funcionarios-judiciales-en-una-operacion-anticorrupcion/; REDACCIÓN. Judiciary suspends a judge and a secretary for Plaga case. Firsts [online]. April 16, 2024 [accessed April 19, 2024]. Available at: https://www.primicias.ec/noticias/politica/judicatura-suspension-juez-secretario-casoplaga/; EDITORIAL. Operativo Jaguar deja 14 detenidos, 10 de ellos son policías. Firsts [online]. April 18, 2024 [accessed April 19, 2024]. Available at: https://www.primicias.ec/noticias/sucesos/operativo-jaguar-delincuencia-organizada-drogas-detenidos/

[3] CONSTITUTIONAL COURT OF ECUADOR [@CorteConstEcu]. November 16, 2023. ...Committed to the construction of constitutional culture and the dissemination of constitutional justice, this organization will hold the “1st Meeting for the Culture of Precedent”.” [Tweet]. Available at https://x.com/CorteConstEcu/status/1725230042471452699; LOZADA PRADO, Alí. [@Alozpra]. March 23, 2024. Towards a culture of precedent [Tweet]. Available at https://x.com/Alozpra/status/1770801954618274169; LOZADA PRADO, Alí. [@Alozpra]. April 9, 2024. ...let's move forward in the culture of precedents [Tweet]. Disponible en https://x.com/Alozpra/status/1777858442230706215

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[9] MAGNANI, Lorenzo. Creating chances through cognitive niche construction: The role of affordances. Knowledge-Based Intelligent Information and Engineering Systems: 11th International Conference, KES 2007 [online].. 2007, (11), pp. 917-925. Disponible en: https://link.springer.com/chapter/10.1007/978-3-540-74827-4_115

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[14, 15] ECHEVERRÍA, Bolívar. Identity, politics and culture. In: Definition of culture. Mexico City: Editorial Itaca, 2010, pp. 163-165.

[16] ALARCÓN PEÑA, Pablo. El derecho comparado desde las familias jurídicas. In: A critical comparative methodology applied to the Ecuadorian constitutional system. Quito: Corporación de Estudios y Publicaciones, 2018, pp. 18-91.

[17] vid. ATIENZA, Manuel. The meaning of law. Barcelona: Editorial Ariel, 2001; LÓPEZ MEDINA, Diego. Teoría impura del derecho. Bogotá: Legis, 2004; and ÁVILA SANTAMARÍA, Ramiro. Cultura jurídica, facultades de derecho y Función Judicial. In: ANDRADE UBIDIA, Santiago, and ÁVILA LINZÁN, Luis, eds. The transformation of Justice. Quito: Ministry of Justice and Human Rights, 2009, pp. 377-414.