II. Review of Latin-American rural woman's legal status30
2.1 Authority (potestas) and its role in women's legal subordination
3. How labour law subordinates rural women
3.1 Rural labour: an informal reality
3.2 Labour law and the rural woman
3.3 Freedom to work and legal capacity in labour matters
3.4 Women excluded by law from certain types of work
3.5 Protective legislation concerning maternity
3.7 General remarks on labour law and the practice of a parallel legal system
4. Access to productive resources under the general law and agrarian law in particular
(30 This chapter is based on case studies commissioned by FAO and carried out by the following lawyers: Soledad Alvear (Chile, Colombia, Dominican Republic, Guatemala and Peru), Emma Castro de Pinzón (El Salvador), Támara Columbié (Cuba), Martha Torres Falcon (Mexico) and Gladys Yrureta (Venezuela), and the country papers submitted to the Round Table "Legal Mechanisms to facilitate Women's Participation in Rural Development", held in Santiago, Chile in September 1990.)
As mentioned in the previous chapter, provisions discriminatory to women are likely to be found in the rules of subjective law, which is the branch governing concrete relationships between individuals and between individuals and property, particularly in the provisions dealing with woman's reproductive role.
As constitutions* are the expression of objective law, generically governing individual and group relations, their rules do not usually deal with specific situations between individuals and between individuals and property, and this is why they are rarely discriminatory.
Indeed, the nine case studies and seventeen papers presented by the participating countries at the Regional Round Table cited not one single case where a constitution contained a discriminatory provision. On the contrary, the constitutions lay down as an overriding principle the equality of all citizens regardless of sex, race or social position. Some not only establish equality between the sexes, as just mentioned, but explicitly state that men and women have equal individual and social rights, and prescribe rules covering the woman's civil, family, political and labour relations. An example here is the 1980 Brazilian Constitution, which also calls upon the State to establish mechanisms to prevent violence within the family.
Putting the legislation into effect is an enormous problem, striking directly at the principles of legal hermeneutics31, which assign priority to the constitution, and stipulate that all other laws are inferior to it. Despite this, most countries continue to implement civil, labour and agrarian laws containing numerous discriminatory provisions, and women continue to suffer the effects of biased, and in many cases, unconstitutional legal rules. This shows the lack of an integrated approach to legal progress by lawmakers and the difficulty of those in charge of administering justice in keeping pace conceptually with their Constitutions. The difficulty here is reflected, for instance, in court rulings that go against the basic constitutional principles.
(31 Legal hermeneutics is the study of the principles of legal interpretation. We are referring here to the stratification system whereby legislation of a lower order (Civil, Labour, Agrarian) is subordinate to the Constitution. Thus, any incompatible rules are to be considered unconstitutional and, by that token, null and void.)
It should nevertheless be stressed that the removal of discriminatory rules from the various branches of subjective law should be seen as itself warranting the status of a provision of the Constitution. This, plus the express constitutional stipulation of full legal equality between the sexes, might not change women's status outright, but it would give women the opportunity to denounce the discriminatory rules as unconstitutional and have them eliminated from subjective law.
Civil law is that body of rules governing relationships between individuals and between individuals and property. It contains (as a consequence of these legal relationships) the rules pertaining to contracts* and obligations having to do with property and succession.
Civil has its origins in Roman Law, which was largely taken over into the Code Napoleon, and served as the conceptual framework for the Latin-American Republican Civil Codes. This, the oldest branch of law, is closely related to the other branches, which have borrowed from it their basic principles. This is why judges refer to the Civil Code when faced with problems of interpretation or with situations that are not governed by other legislative areas. Civil law has a privileged place in the pre-established hierarchy of laws in some countries, and it is obligatory to refer to it in appropriate cases.
Authority or potestas is defined as the control or power exercised over a person or thing. As noted above, authority in this sense subtends all the rules of law that discriminate against women.
The Napoleonic Civil Code and most of Latin America's Republican codes contain two legal institutions explicitly classified under the heading "authority": Marital, i.e. husband's authority (potestad marital) and parental authority or patria potestas. The justification for these two types of authority is the incapacity of minors to dispose freely of their persons and their property because they are not responsible for their acts. Incapacity may be absolute or relative*, depending on the age of the person concerned.
The definition commonly used is the one which appeared in the Chilean Civil Code until November 1989: "Marital authority (potestad marital) is the body of rights that the law confers on the husband over the person and property of his wife".32 In order to implement this body of rights favouring the husband, the lawmakers had to resort to a legal fiction* whereby a woman of legal age becomes an "adult minor" upon contracting marriage under certain conditions and loses the capacity she had acquired on reaching adulthood.33 Thus, the woman's legal incapacity and, consequently, the husband's legal authority over her may refer to the woman's person or to the administration of her property.
(32 Under a 1989 reform, the Pinochet Government removed the definition but not the spirit of this authority from Chile's Civil Code.)
(33 Adult minors are adolescents (generally women over 12 and men over 14 years of age). Their status is one of relative incapacity before the law, i.e. their acts may be legally binding if certain conditions are fulfilled.)
The woman's diminished capacity over her own person is connected with extrapatrimonial rights*, i.e. rights not directly having to do with property, which may not always be immediately quantifiable in monetary terms.
A number of rights are personal: the right to respect, to consideration, or to work, to take up residence, etc. But, for Latin-American women in general, and rural women in particular, these rights have been diminished: a woman is obliged to obey her husband and to live where he chooses; and the husband can oblige the woman to give up her job outside the home if he considers that she is neglecting her children or her home.
This is the treatment which married women in many Latin-American countries endure under law, irrespective of the property regime* they have chosen. The Table 1 sums up the different situations in certain countries concerning married women's loss of capacity over their persons.
The women's capacity to administer her property is diminished through the legal fiction whereby she becomes an adult minor merely by marrying under certain property regimes. Marital authority usually implies the establishment of a community property regime in which the property that both spouses bring to the marriage and that acquired during the marriage are administered by the husband.
TABLE 1* - LIMITATIONS ON THE MARRIED WOMAN'S CAPACITY WITH RESPECT TO HER PERSON IN THE CIVIL CODES OF VARIOUS LATIN AMERICAN COUNTRIES
Main limitations on the married woman's capacity with respect to her person |
Countries where such limitations exist |
1. Obligation to obey the husband |
El Salvador: this is explicitly stated in the law. |
2. Limitations on the woman's Nicaragua: right to elect her domicile. |
Nicaragua: The wife must live with the husband. Panama: If they fail to . agree, the husband's choice prevails. |
3. Limitations on the right to work. |
Bolivia, Guatemala, Mexico (States of Durango, Aguas. Calientes, Sonora, Nueva León, Oaxaca, Guanajuato, Michoaccán, Tabasco and Mexico Federal District), Paraguay: The husband may oblige the wife to give up her job if he feels this is in the interest of the children and the home. |
* This table includes the data from the nine case studies and seventeen papers presented at the Round Table "Legal Mechanisms to facilitate Women's Participation in Rural Development".
However, there are exceptions to the condition of incapacity attached to certain marriage regimes and to the constitution of the community property. In the Dominican Republic, for instance, the man administers the property under all the property regimes, even that of separate property*. In Guatemala, the husband administers the property under the conjugal partnership regime, where, by definition, each spouse manages his or her individual assets during the marriage and the conjugal property is divided between them if the marriage is dissolved.
Table 2 shows how women are affected by marital authority over their assets. Paraguay is the only country mentioned in this table where marital authority is still contemplated and defined described in the legislation. The other countries have removed all mention of it from their texts, but it continues implicitly in the legal rules that diminish the married woman's legal capacity.
Of the countries reviewed in this study, the concept of marital authority has disappeared from the letter and spirit of the law only in Brazil, Colombia, Costa Rica, Cuba, Peru, Uruguay and Venezuela. Even so, this does not mean that it has been completely eradicated in these countries. Throughout Latin America, it continues to be one of the fundamental unwritten rules endorsed by custom. In rural areas, marital authority is one of the most important institutions governing relations within the couple, whether or not the partners are married. It is extremely difficult to find a rural woman who does not take up the domicile of her husband or companion, or does not give up her job outside the home when the man decides she should. Also, a woman's assets are almost always administered by the husband or companion. As noted above, customs such as these are the major reason why so much egalitarian legislation is ineffective.
Customs, again, are more difficult to eradicate in rural areas than in the towns. This is due, among other factors, to the relative isolation of the social groups that observe such customs.
Patria potestas or parental authority is defined as the body of rights and obligations conferred by the law on the parents over their children who are minors. Unlike marital jurisdiction, this legal institution implies obligations as well as rights. The subordination of the woman arises here when the law grants the father sole or preferential rights to administer the property and take decisions concerning the education of the minor children.
TABLE 2* - LIMITATIONS ON THE MARRIED WOMAN'S CAPACITY WITH RESPECT TO PROPERTY IN THE CIVIL CODES OF VARIOUS LATIN-AMERICAN COUNTRIES
Country |
How marital authority is represented in the Civil Codes |
Chile |
The husband is the administrator and representative of the conjugal property under the community property regime. |
Ecuador |
Unless agreed otherwise in the marriage contract, the husband administers the conjugal property. |
El Salvador |
The husband administers his wife's assets if she is a minor. |
Guatemala |
The husband administers the property under both the community property and the property of conjugal partnership regimes. |
Mexico (States of Aguas Calientes,. Oaxaca and Sonora) |
The husband administers the conjugal property under the community property regime. |
Nicaragua |
The husband is the family's representative or, in his absence, the . wife (Civil Code, Art. 151). In practice, however, this does not appear to have any economic consequences. |
Paraguay |
Unless otherwise stated in the marriage contract, the husband is the administrator of the property. |
Dominican Republic |
The husband administers the property, even under the separate property regime. |
* The data in this Table were taken from the case studies and papers presented at the Round Table on "Legal Mechanisms to facilitate Women's Participation in Rural Development".
The Latin-American Civil Codes differ on the subject of Patria potestas, some granting equal rights to both parents, others giving priority to the father. Brazil, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Uruguay and Venezuela are examples of the former, and Chile, El Salvador, Dominican Republic and Paraguay of the latter. Patria potestas is usually granted to the mother when children born outside marriage live with her.
The general opinion, based on knowledge of rural family customs, is that in the Latin-American countryside the father's decision prevails in matters pertaining to the persons and assets of the children, whether these are the offspring of marriage or of a de facto union. In the eyes of both statute and customary law, children born of temporary unions and living with their mother are, of course, under her authority.
It has already been said that the subordination in law of women in general, and of rural women in particular, is met with under "legal" rules or customs which are often in conflict with the written law. It also occurs, however, in cases where the law fails to recognize certain situations, such as de facto unions.
A de facto union may be defined as cohabitation of a man and woman with a view to a long-term partnership. The purpose of such a union is similar to that of marriage. However, in countries where it is not legally recognized, the woman who does not solemnize her union through marriage is discriminated against and deprived of the protection that legislation offers the married woman. Some countries have become aware of this grave problem, and passed laws to deal with it. These laws, however, are in such contradiction with the provisions of other legislative areas (especially those dealing with succession in civil law, and succession to or reallocation of land allocated under agrarian legislation) that they are often ineffective.
At the root of this problem is the way Latin-American laws have traditionally dealt with consensual unions. The Catholic church and the Spanish lawmakers, unaware of the legal principles governing unions between men and women in the indigenous territories, instituted marriage as the only legal form of union. This not only gave rise to a situation where many indigenous women, including those living in polygamous relationships, found themselves totally unprotected, but placed those living in consensual unions in a separate category from married women. This situation and its ideological consequences continue to underlie both the refusal of some governments to recognize the institution and the contradictions that exist in countries where consensual unions are legally accepted. Examples of these contradictions follow:
(a) in some countries, a de facto union is admitted only as between individuals who have no legal impediment to entering into a marriage contract. This rules out recognition of de facto union for many couples in countries where divorce does not exist; and, even in countries where it does, couples may not be able to undertake proceedings of this kind, either because they are too poor or because they live too far from the courts. The absence of a legal impediment to marriage is a prerequisite for the recognition of a de facto union in Brazil, Mexico Federal District and Peru;
(b) although the laws of many countries recognize de facto unions, civil and agrarian law is not always consistent with regard to succession in such cases. While civil law recognizes the companion (male or female) as entitled to a share of the legitim*, the woman is not accorded priority, following the death of the first allottee, to land granted under agrarian legislation. This is the situation in Paraguay and Venezuela. In Paraguay, proof of cohabitation must be provided for a common-law wife or husband to inherit under civil or agrarian legislation. In Peru, the woman partner in a consensual union does not figure share in the legitim;
(c) in some countries where consensual unions are not recognized by law, a companion may receive a pension following the partner's death, or compensation following a work-related accident. Although the de facto union is not legally recognized in Colombia 34, Costa Rica and Uruguay, a companion may inherit the pension (upon the other partner's death) or the compensation (paid as a result of his or her work-related accident). Things are otherwise in Chile and El Salvador, where the woman in a consensual union has no protection whatever.
(34 The new Colombian Constitution, approved in July 1991, recognizes de facto unions. For these to be legally valid, however, the conjugal property (in the case of a previous marriage) must first be liquidated and the couple must have cohabited for more than two years.)
Consensual unions are legally recognized on a par with marriage for all purposes in the legislation of Cuba, Ecuador, Honduras, Mexico (the States of Durango, Hidalgo, Mexico Federal District, Morelia, Queretaro and Sonora), Nicaragua, Panama and Peru. Although cohabitation is recognized in Brazil, the woman may not claim support or alimony after the union is dissolved. In this connection, the laws of the Mexican States of Queretaro, Morelia, Sonora and Durango are the only ones that are absolutely clear on the subject of a common-law wife's right to claim support.
The lack of consistency in the provisions governing this legal institution in some countries and the total absence of legal recognition in others are a further and serious problem for the rural woman. Although it is not possible to provide statistical data for all the countries so as to give an overall picture of de facto unions in Latin America, the practice is certainly widespread throughout Central America and the Caribbean. For instance, 61% of unions in rural El Salvador are consensual35, as are most of those in Brazil and Paraguay. The number of marriages in the rural areas of the Andean region increased under the impact of agrarian reform which required that the man be head of the household in order to be allocated land. This, however, has not significantly changed the situation as regards extralegal unions in rural Latin America and the resulting subordinate position of rural women, in socioeconomic terms and in relation to men.
(35 FAO. 1990. La situación de la mujer campesina frente a la legislación ... Op. cit. p.20)
The importance for the rural woman of succession following the death of the husband or companion and its relation to development lies in the fact that succession is one of the most common ways for women to accede to land ownership. This is particularly true now that the agrarian reform processes have been suspended in a good number of countries i.e. those where the aim is to incorporate the rural woman into development without changing the land tenure system.
The laws in Latin America are not consistent as to how the married woman, or partner in a de facto union, inherits from her husband or companion. They are more consistent, however, in their treatment of succession where adult daughters are concerned.
The Civil Codes of the various countries distinguish between the succession of the spouse and his or her share of the joint estate once the conjugal union ceases upon the death of one of the spouses. The same rules apply to both husband and wife. The spouse's share depends on the property regime chosen by the contracting parties. Thus, if the spouses have chosen the separate property regime, there is no liquidation of a joint estate property: each spouse retains his or her own assets, and whatever is acquired during the marriage remains under separate ownership.
Under the community property and property of conjugal partnership regimes, the property brought to the marriage and that subsequently acquired becomes jointly owned and must be shared equally between the spouses. The assets of the succession are therefore half of the community property plus the assets that each spouse obtained through inheritance, lottery wins, etc., which do not form part of the community property. Now, as mentioned earlier, the laws of the various Latin-American countries are not consistent on this point, and the conditions for inheriting a spouse's or companion's property vary depending on whether the succession is testamentary or intestate*, and whether the property is subject to the Civil Code (as in the case of purchased or inherited land), or to agrarian law (for land allotted thereunder).
Table 3 gives a clearer picture of the woman's situation in different countries. In some countries the spouse is completely free to make a will*, in which case it is possible for one spouse to leave the other totally unprotected (under the separate property regime, and where the survivor has no assets).
This is the situation of the surviving spouse in El Salvador, Costa Rica, Honduras and Panama. In Guatemala, Mexico and Uruguay the testator has freedom of disposal by will, with one limitation - the obligation to provide support and maintenance. In the remaining countries in the table, the testator has limited freedom: he or she may only dispose freely of part of his or her assets and is obliged to share the remainder among whom the law specifically requires be treated as heirs. Sometimes the spouse is not one of these heirs, but in that case part of the succession, called the spouse's share (porción conyuqal), must be left to a spouse who has no assets.
In the case of intestate succession, the heirs are obliged to abide by the law. The spouse is heir to the mandatory spouse's portion in all the countries under review, but the amount due to him or her varies from country to country.
In some countries the married woman inherits the same proportion as the children only if she is their mother, which is tantamount to saying that the law accords some benefit to the woman solely on reproductive - biological - considerations.
The situation is different for the women partners in a consensual union. They are heirs under Civil law only if their union is legally recognized (in some cases this means that it is equated with marriage for all effects and purposes). In Peru, as noted earlier, the partner in a consensual union is not a forced heir.
As regards succession to land allocated under agrarian legislation, it is possible to discern two distinct tendencies, depending on the field of law applicable. Some cases fall under the Civil Code, which allows the heirs to share the land among themselves, in which case the parcels will be physically divided up; other cases are governed by agrarian legislation introduced for the express purpose of preventing the land from being fragmented. Agrarian law also specifies the order of priority for reallocation. Some countries name the wife or companion if she works on and earns her living from the land; and others indicate one of the family members, usually the eldest son, thus discriminating against the women in the family.
TABLE 3* - SITUATION OF THE SURVIVING SPOUSE UNDER THE RULES OF SUCCESSION IN VARIOUS LATIN-AMERICAN COUNTRIES
Country |
Civil law |
Agrarian law | |
Testamentary Succession |
Intestate Succession |
Succession to land allocated under Agrarian law | |
Bolivia |
Freedom of disposal by will not absolute. The spouse is forced heir. if there are children. |
The spouse is one of the heirs if there are children |
The rules of the Civil Code apply. |
Brazil |
Freedom of disposal by will not absolute. The.. spouse is forced heir |
The spouse is one of the heirs to the non-freely disposable portion. |
The rules of the Civil Code apply |
Colombia |
Freedom of disposal by will not absolute. The spouse or spouse's mandatory share |
The spouse is one of the forced heirs with the spouse's share (an allowance for support and maintenance, the need for which must be demonstrated). |
The agrarian rules apply. The spouse or companion inherits. |
Costa Rica |
Absolute freedom of applies.disposal by will. |
The spouse is one of the forced heirs. |
The rules of the Civil Code apply. |
Honduras |
Absolute freedom of disposal by will. |
The spouse is one of the forced heirs, but must show that maintenance is necessary. |
Agrarian law applies. |
Mexico |
Freedom of disposal by will, but testator obliged to provide support and maintenance. |
The spouse is one of the forced heirs. |
Agrarian law applies. |
Nicaragua |
No freedom of disposal by will. The spouse must be provided for. |
The spouse is one of the forced heirs. |
Agrarian law applies. |
Panama |
Absolute freedom of disposal by will. But the spouse's share applies. |
The spouse is one of the forced heirs. |
The Civil Code applies. |
Paraguay |
Freedom of disposal by will not absolute. The spouse must be provided for. |
The spouse is one of the forced heirs. |
The Civil Code applies. |
Peru |
Freedom of disposal by will not absolute. The spouse must be provided for. |
The spouse is one of the forced heirs. |
Agrarian law applies. |
Dominican Republic |
Freedom of disposal by will not absolute. The spouse must be provided for. |
The woman is one of the forced heirs. |
Agrarian law applies. |
Uruguay |
Freedom of disposal by will, with one limitation: the spouse's share (an adequate subsistence allowance)**. |
The spouse's share is mandatory. |
The Civil Code applies. |
Venezuela |
Freedom of disposal by will not absolute. The spouse must be provided for. |
The spouse is one of the forced heirs. |
Agrarian rules apply. |
* The data in this table were taken from the nine case studies and the country papers presented at the Round Table "Legal Mechanisms to facilitate Women's Participation in Rural Development".
** An adequate subsistence allowance is the amount of money the spouse needs to live modestly in a manner corresponding to his or her social status.
In matters relating to the succession to land allocations, the agrarian laws of Bolivia, Costa Rica, Chile, Ecuador, El Salvador, Panama and Paraguay comes under the Civil Code, while in Colombia, Cuba, Honduras and Nicaragua the Agrarian Code applies. In Colombia, where the new Constitution recognizes de facto unions as legal, the Agrarian Reform Act recognizes the right of the companion to inherit the land allocated under that Act from the de cujus*. In Venezuela, although consensual unions are legally recognized, neither spouses nor companions are among those with a priority claim to land reallocation, but they may appeal under the Agrarian Reform Act for "agrarian protection" (amparo agrario).
In Cuba, the Civil Code recognizes consensual unions and accepts that the surviving partner shares in the succession. Smallholdings may only be inherited by heirs who work the land personally. Even so, the law makes an exception for women who cannot work the land themselves but earn their livelihood from it. This exception is also valid for succession to land allocated under the Agrarian Reform Act.
There are two ways in which custom obstructs the law to the detriment of women: one, at family level, where patriarchal preconception allows fathers during their lifetime to hand over to their sons portions of land to cultivate; and two (for similar preconceptions) the mix-application of agrarian law by those in charge of its enforcement (who often reallocate land to the male family members despite the fact that the law does not expressly discriminate against women).
The temporary transfer of land by fathers to their sons in some regions often deprives the women of their right to it, as they are unable to pay for the improvements made. This leaves them no option but to relinquish their claim. However, the custom seems definitely to be falling into disuse, and, according to the participants at the Regional Round Table mentioned earlier, is no longer a serious problem.
The family estate* is the legal institution through which families with minor children may retain control of a dwelling or small rural holdings. It gives the family security, because property incorporated into a family estate thereby becomes inalienable*; it may not be divided or seized, but may be conveyed through inheritance.
Here again, the lack of socio-economic studies means that there are no statistical data, so it is not possible to say accurately how many families have established a family estate in the countries where it is recognized by law, or to what socioeconomic class they belong. From the very limited data available all that can be said is that:
1. The establishment of family estates is more frequent in the urban than in the rural sector;
2. in the countryside, family estates concern dwellings rather than agricultural holdings;
3. the institution has fallen into disuse in many countries;
4. whether or not it is retained in both law and practice depends on the accompanying regulations. For instance, the institution would have been more widely resorted to, had it been made compulsory to incorporate government-allocated real property, essential to house or maintain the family, into the family estate; and
5. one reason why the family estate concept has been little developed on this continent is that the banks prefer mortgage security, and property that has been declared family estate cannot be mortgaged.
Credit policy aimed at persuading the banks to discontinue this preclusion and to be more ready to accept collateral security* in the form of a pledge or, say, a future harvest would give large numbers of poor rural families with minor children the possibility of buying at least a minimum of their subsistence requirements.
The laws of Bolivia, Colombia, Cuba, Dominican Republic, Guatemala, Mexico, Nicaragua, Paraguay, Peru, Uruguay and Venezuela include provisions instituting the family estate. In some of these countries the peasants hardly ever take advantage if it, for the reasons already mentioned; and unless enforcement regulations and supporting action are developed for this useful piece of legislation, it will become a dead letter.
Labour law may be described as the body of rules governing relations between employees and employers. This branch of law began expanding significantly in the 19th Century in the wake of the many workers' movements that developed in protest against the social injustices of capitalism. These movements also gave rise to the trade unions and to new political parties based on differing ideologies, but having one common denominator: they were the product of 18th Century economic policy and of the economic and social changes generated by what is known as the Industrial Revolution36.
(36 SULTAN, P. 1964. Economía política del trabajo. Mexico, Trillas. pp. 133-160.)
Among the conquests of the trade union movement and the new political parties was the development of labour law and the promulgation of rules of law governing worker-employer relations. These rules reflected a particular ideology. As in other areas of indigenous law and practice, the labour rules of the indigenous peoples were wiped out in most of the continent and new working conditions and rules established; and today's legal practices in labour matters basically fall in line with these.
Enforcement certainly poses serious problems in the rural sector, as the rules of labour law fail to take account of the real situation of working people, particularly working women, there.
An important point here is that this field of law has also been influenced by ideological trends in other latitudes. Labour law was first established in the wake of urban worker movements and was adopted in Latin America with little regard for this continent's particular situation. Until the mid-twentieth century Latin America was predominantly agricultural: more than half the population lived in the countryside and agriculture accounted for the largest share of the countries' GDP. Migration, urbanization, industrialization, etc., led many rural dwellers to abandon the countryside, a trend which in many countries reversed the urban/rural population figures. Even so, Latin America remains predominantly agricultural today.
The causes of the differences between urban and rural labour legislation in most Latin-American countries are many and varied. One of them may well be the influence of the large landowners who long held economic and political sway there. But whatever the reason, one thing is certain: it is the woman who comes off worst.
Except in Cuba and Nicaragua, efforts to recognize the specific characteristics of rural men and women have not led to legislation capable of coming to grips with the problems and providing appropriate solutions. Women continue to hold the least privileged position, and in all countries without exception practice has given rise to parallel rules which discriminate against them.
The social scientists fail to agree on a definition of informal work, though there is fair degree of consensus as to its basic social components: low salaries, low status and irregularity of jobs, the absence of enforceable work contracts, the lack of social security benefits and the difficulties in gaining access to land, to credit and to workers' associations, etc.
Mention has already been made of how the law marginalizes the rural woman; and the fact takes on particular importance where the Labour Code is concerned, since most rural women are involved in the informal sector of the economy and thus are denied any protection under labour laws.
The rural woman is denied legal protection for two main reasons: one, she works without a legally binding contract (the matter was touched on in the preceding pages) and, two, the labour laws fail to take account of the real situation of rural workers in general, and female rural workers in particular. A review of the discriminatory rules, influenced by patriarchal preconception, will bear this out.
Freedom and capacity in labour matters are two essential factors to recall in examining equality between the sexes before the law. Any imbalance in either right leads to unequal access to the labour courts and to unequal rulings likely to be handed down there. Freedom is the faculty of responsible human beings to act as they see fit, and inevitably infers the absence of subordination. The exercise of freedom has one essential condition: one must be responsible. The legal definition of responsibility is the capacity to perform legal acts; and capacity in this sense may be defined as the ability to be the subject of obligations and of rights, or the ability to perform legally binding acts. Freedom and capacity are both lost if their essential prerequisites are missing, and the most important of these is responsibility.
The main factors limiting responsibility in the Labour Code are age and the effects of the patriarchal ideology, the latter placing the woman in a subordinate position because she is seen as physically and morally weak, and needing man's protection.
Mention has already been made of the interrelationship between the various branches of law and the discriminatory ideology that runs through them. Thus, the legal fiction which equates women with minors merely because they have married is also met with in labour law. Even so, all the Latin-American countries where marital authority is enshrined in the law have a clause allowing married women to enter freely into contracts and to dispose of the salary received through the exercise of their profession or activity. This modicum of freedom is restricted in some countries, however, by laws which entitle the husband to require his wife to give up her job if he considers it to jeopardize the well-being of the children or the care of the home. This is the situation with which married women in Bolivia, Guatemala, some Mexican States and Paraguay have to contend.
In practice, the rural woman, more often than the urban woman, either refuses to accept a job or quits it if her husband or companion thinks she should. Marital authority is custom - in labour matters too - and is still very much the rule where rural women are concerned.
On the premise that they are physically and morally weak, almost all the Codes have provisions that exclude women from certain types of work.
Authority, potestas, once again lies behind these provisions which limit women's right to work on the pretext of this physical and moral weakness and their consequent need of protection. One common discriminatory feature is ever present: women are equated with minors, both as if they were under age and because they are incapable of deciding whether or not to undertake certain types of work which might affect their physical and moral well-being.
The labour laws of several countries prohibit four types of work for women: unhealthy work, underground work and work that is damaging to their physical condition and work that is damaging to their moral condition (the one most often cited here is night work). These laws, however, do not agree on the actual jobs to be ruled out for women or on the advantages of eliminating the relevant provision from the statute book.
Mexico repealed all prohibitive labour provisos from its Labour Code in 1974. Cuba lists the jobs that are not recommended, leaving it to the woman to decide whether or not to take on a given type of work. The criteria used to assess these types of work include intense physical effort, and exposure to radiation, high temperatures, high pressure or toxic substances.
Provisions concerning the handling of fertilizers and disinfectants take a realistic view of the rural woman's situation. They stress protection and hygiene, but do not prohibit women from these tasks. Peru does not have measures prohibiting women from certain work, but it has so many legal rules granting them special benefits regarding the working day, rest periods and compensation, that employers are now reluctant to engage women. In Honduras prohibitive provisos are absent because labour law refers the matter to health legislation, which is silent on the subject. The laws of Nicaragua, Panama and Uruguay do not prohibit adult women from doing night work. Bolivia explicitly treats women as minors and specifically excludes them from jobs that endanger private or public morality, but does not list the jobs, leaving the choice to the employer.
Jobs rated as dangerous or unhealthy vary from country to country, as do the exceptions to the prohibition of night work. Some countries generically ban strenuous or highly dangerous jobs, others list each job and some specifically state that the work must not be damaging or harmful to the woman's physical or moral condition. The laws of Bolivia and Costa Rica are examples of the latter approach. As regards the exceptions to the prohibition of night work, Brazil's labour legislation is worth mentioning in that it lists work in leather factories as one of the exceptions.
This warrants the conclusion that the lack of consistency in the dangerous jobs list and in the exceptions to night work are a disguised "regulation" of the labour market rather than a genuine attempt to protect women. Since men are indeed usually physically stronger than women, it would be more logical for the legislation to provide a list of jobs (as in Cuba) and let the women decide which are too strenuous for them. Without such a list, employees are at the mercy of employers who are free to oblige both men and women to perform tasks that are physically too strenuous. As regards jobs damaging to health, it would be fairer to both men and women to draw up rules obliging employers to provide the safest possible working conditions.
The prohibition of night work has fallen somewhat into disuse with the rapid change in accepted practice that has occurred over the past 20 years, especially in the towns "somewhat", because women do in fact work at night, but without legal protection. The employers take advantage of the fact that the prohibition on their working at night is still in force and pay their women night workers lower wages and offer no social security coverage.
Tradition takes precedence in the countryside. The peasants pay little heed to rules prohibiting this or that, especially those prohibiting night work, as some farm work (milking, for instance) is deemed to fall under this description if it is done before 6 am.
As regards the ban on unhealthy work, there are no figures to illustrate the magnitude of the problem for rural workers. There are indications, however, that women working in flower and fruit exporting firms (in Colombia and Chile, respectively) are being affected by constant exposure to the risks associated with the intensive use of agricultural pesticides.
The general cloudiness of definition here described also applies to the prohibitions on strenuous work. Some countries classify strenuous jobs in terms of the weight to be lifted, others refer to heavy machinery, etc. This ban may be one of the reasons why rural women are denied technical training - a practice which only serves to reinforce the traditional division of labour which favours men for such training. Paradoxically, this division of labour often prevents rural women from doing work associated with technology (driving tractors or other agricultural machinery), the precise aim of which is to make farm work easier.
Woman's reproductive is possibly the only area of activity which, in every country, actually merits having protection measures backed by legislation. However, the concept and scope of these measures vary from one country to another. In some countries, they are seen as a duty of society maternity, through which the workforce and society are renewed, being a social function. In others, they represent a gender-based division of labour, whereby, maternity belongs directly to the sphere of reproduction, which is why responsibility for this function has traditionally rested exclusively with the woman and not with the couple or society.
This view of maternity stems from an entrenched family power structure, which allots each family member his or her place within the family and in society. Protectionist rules are therefore seen by the employers as a burden when they have to recruit women workers.
Where the economic burden of maternity lies with society, the State has to find ways to effectively implement the law in the interest of all, rural people and the unemployed included.
Maternity legislation usually grants special privileges to women in their capacity as mothers. Among the most common of these are: the right to pre- and post-natal leave (the number of days varying from country to country and almost always calculated in terms of weeks), the right to full pay during such leave, the employer's obligation to keep the woman's job open during her leave, the right of the mother to nurse her infant during working hours and the right to nursery facilities where the children may be properly cared for.
These privileges are much more likely to be enjoyed by the urban working woman and protected through a formal work contract, but denied the rural woman. There is a close correlation between the work rural women do and rural poverty and black work, and deficient protection from the law. Mention has already been made of the fact that, as a result of the economic changes in rural Latin America in recent years and their consequences on the labour market, more and more women have been forced to take up informal work. This situation enables employers to get round their obligations to working mothers.
Cuba is the only country reviewed with legislation that considers maternity a social function and explicitly protects working mothers, including those without a formal work contract. This means that Cuban rural women's needs are effectively protected. The country also has legal mechanisms, procedures and strategies for making the laws effective. Responsibility for nurseries is shared between the Government and the trade unions, and special solutions have been found for the rural areas: for instance, one mother in a cooperative group will be chosen to look after the children of all the other members.
It is not possible to generalize about the other countries. In Colombia, Costa Rica, Mexico and Uruguay, for instance, nurseries are funded mainly by the State and the private companies, the parents also making a small contribution. In Brazil, nurseries are state-run. In the rural areas of Colombia, the Instituto Colombiano de Bienestar Familiar (ICBF) has replaced nurseries by a substitute home system for children up to five years old: rural families living within a certain radius of each other choose one of the mothers to look after the children while the others are working.37
(37 For more information see the summary of the Colombia case study in Annex 1.)
State protection for rural Colombian women offers no other maternal privileges for mothers working in the informal sector. In Chile, following the privatization of the Social Security system by the military government, women workers with formal contracts were denied the right to hospital services if they became pregnant within first month after joining the social security system. In the other countries under review, employers with a certain number of women workers must provide nursery facilities. However, it is easy for employers to avoid meeting this obligation: they simply do not employ the required number of women; and this is a further cause of female unemployment.
So as not to burden themselves with the economic cost of maternity, employers in this second group of countries also resort to a number of illegal expedients among them the practice of requiring women to undergo a gynaecological examination before their appointment is confirmed. In El Salvador, maternal privileges are not always respected, and the same seems to be the case in Paraguay. It must be realized, therefore, that only if maternity is considered a social function will it be possible for all privileges to have equal importance in the spirit of the law and in practice. Full pay during maternity leave, nursery facilities, etc., will thus be the responsibility of society, and society will seek ways and means of enforcing the law and ensuring that it also applies to poor urban and poor rural women, including those without formal contracts.
The development of capitalist agriculture in Latin America may be said to have begun only after the First World War, when this part of the world became systematically incorporated into the capitalist trading orbit. This came about through systems and mechanisms established by the United States of America, the newly dominant country, and led to phenomena such as the abandonment of the countryside, urbanization, the growth of the agro-export sector and new labour systems. Coffee, cotton, tobacco and, much later, around the 'seventies, other crops such as fruit and flowers, based on the intensive use of modern technology and, of course, new work practices, adjusted to these systems. One of the preferred practices was the recruitment of women as temporary workers, usually without contracts and on piece-work (which usually meant their working a longer day to meet the targets assigned them).38
(38 RIQUELME, V. 1987. Asalariadas agrícolas: temporeras en el campo, permanentes en la case. In: CENTRO DE ESTUDIOS DE LA MUJER (CEM). Synópsis de una realidad oculta. Santiago de Chile, Interamericana. pp. 53-60.)
Various studies have shown that women's participation in these intensive cropping systems is directly related to a number of factors such as the intensity and seasonal character of the work, the conditions of employment (a formal contract is always excluded), and the socio-economic background of the female worker.
Most women temporary wage-earners come from landless or smallholder families,39 a fact which, as noted earlier, directly associates women's work (i.e. work without a contract) with rural poverty. The absence of a written contract also makes the woman worker "invisible" (she is not included in the statistics as verbal contracts do not appear in company staff records).
(39 LEON DE LEAL, M. 1987. Op. cit. pp.10-12.)
Temporary or periodic contracts are nevertheless specifically provided for in the legislation of several countries, but the relevant laws are inoperative. This is due, on the one hand, to the system of verbal recruitment (this is explicitly authorized in the laws of a number of countries, including El Salvador, Nicaragua and Panama), and to the lack of monitoring in most countries to ensure compliance with the legislation on the temporary recruitment of agricultural workers. On the other hand, even when contracts are drawn up, no one abides by them.
Cuba is once again the exception to these twin expedients denying women protection. In this country contracts are obligatory for temporary work, monitoring is effective and the persons involved enjoy the full range of social benefits and protection. However, even in Cuba, the types of jobs women do are lower-paid ones.
Informal working arrangements victimize men as well as women; and temporary female rural workers are defenseless and denied all the benefits enjoyed by regular workers under law (holidays, social security, the right to nursery facilities and full protection of maternity).
The situation as regards working hours is just as bad. As noted, temporary workers are paid either the minimum wage or on piece rates. Women are usually recruited on a piece-work basis, but have to work longer hours than men. Studies conducted on the Ecuadoran coast region showed a significant difference between men and women in the matter of the hours they work: the men worked a 6½ hour day, and the women up to 14 hours, 40 - not because they were less productive but because of the domestic responsibilities they shoulder.
(40 See the studies by MENDEL, J and VALDES, X in 1987.)
All the practical discriminations - wages, the lack of legal protection or social benefits, working hours, etc. endured by the rural women, in particular, in turn produce the de facto legal discrimination whereby the woman is kept on the lowest rung of the rural poverty ladder.
It has already been shown that Latin America has made little progress in labour legislation to benefit rural workers or in regard to their special types of work. Historical, ethnic and social factors, the type of crops grown, and the degree of mechanization are just some of the countless reasons for this failure.
The labour regulations of most Latin-American countries are specific in providing that there should be no discrimination between men and women. They also distinguish between permanent and temporary workers and cover working hours but do not generally benefit rural workers. Most countries' labour laws contain references to crop and livestock workers, but none, except Cuba's, treats them as the central subject of these selfsame laws.
One thus finds general declarations such as that of the non-discriminatory principle or the categorization of workers as either permanent or temporary/casual. In most countries, when a legal rule refers to a particular case, it is usual for differentials to be established which operate to the detriment of the rural worker. Lower wages in the rural than in the urban sector, a sort of truck system whereby the bosses are allowed to provision their workers (the cost then being deducted from their wages), permission to recruit verbally, and working days longer than the statutory eight hours, are some examples. Where the legislation grants equal rights to rural as well as urban workers, the equality is purely formal. Economic and legal tradition is more discriminatory to the rural than to the urban man, and to the rural woman than to the rural man.
Gender-based division of labour, with its allocation of tasks and responsibilities for men and women, is closely linked to access that either sex enjoys to productive resources. With the assigning of reproduction-associated functions to the woman, a family power structure has been established as well, in which the woman is made subordinate to the man in family decision-making and in productive work outside the home.
As explained in Chapter I, reproduction involves more than mere biological reproduction, it also implies the perpetuation of the workforce and of society. Perpetuation of the workforce involves more than mere biological reproduction; it also includes the transmission of values that have to do with work, and with the incorporation of workers into the productive process.
Social reproduction implies the perpetuation of certain methods within the productive process, and of legal and social relations, which include systems of succession, control over resources and the preservation of ideologies through which certain legal relationships that are expressed in customs and, at times, in statutory legislation are maintained. This task is accomplished in the family mainly through the mother. Reproduction of the workforce in the rural sector signifies, among other things, the handing on of agricultural techniques and knowhow. This is usually the job of the father and other male members of the family.
Even though the woman is responsible for almost all reproductive tasks, she has no say in the important decisions. In addition, her productive work is underrated - a state of affairs which has serious practical and economic consequences.
A look at the family as a production unit will confirm the above remarks. Although internal family organization is changing in line with the characteristics and demands of the various production methods, these changes do not affect the family power structure. This means that family cohesion is sustained by ideological supports which have a direct bearing on participation in production and, therefore, on the role each member can play in development. This ideology finds expression in customs observed in the countryside and in the way the law is called in to tackle problems.
What is said here provides a useful premise for examining the legal status of the rural woman in terms of her access to productive resources.
The most usual way for the rural woman in almost all Latin-American countries to gain access to land is through succession or through the allocations made under some countries' Agrarian Reform Laws. Although statistical evidence as to the magnitude of this problem for landless rural women is unavailable, some recent studies maintain that there are sufficient grounds to show that rural woman are systematically denied access to land and direct control over other means of production. This is confirmed by the case studies and country papers presented at the Regional Round Table.
The legal problem of land ownership by rural women is closely bound up with the institution of marital authority, with de facto unions and, above all, with the patriarchal ideology underlying all the areas of law and practice observed, with specific local features, in the various regions.
In the chapter on succession it was shown how spouses or companions may gain access to land by inheriting, and how the different rules governing testamentary and intestate succession in the various countries affect the surviving spouse.41 In intestate succession, all the Latin-American codes allow the surviving spouse to inherit, either as a "legitimate" (i.e. "forced") heir or as beneficiary of the "spouse's share" of the estate. In many cases this consists 'of little more than provision for maintenance, evidence of the need of which has to be produced - this is the situation of childless surviving spouses in Bolivia, Honduras, Uruguay and Colombia.
(41 See Table 3.)
The situation is different in the case of testamentary succession. In some countries the spouse is absolutely free to dispose of his or her property as he or she sees fit and may exclude family members, including the surviving spouse. This is true of Costa Rica, El Salvador, Guatemala and Mexico, where the testator's only obligation is to leave maintenance for the spouse; in Panama and Uruguay, the testator is bound by the spouse's share rule, i.e. the obligation to leave a sufficient amount for his or her maintenance, but the spouse has to justify the need of such support.42
(42 See Table 3.)
The woman companion in a de facto union may inherit where there is no will only in those countries where such unions are legally recognized (Peru is an exception here).
This brief account shows how the woman, usually the poorer of the two partners, gains access to land in this fashion. Because of her precarious situation - she has to find her way through a veritable legal labyrinth crammed with special rules of succession - this is not a particularly efficient way of gaining access to land. Furthermore, in the case of intestate succession, the region's Civil Codes are based on the Code Napoleon, whereby the children share the estate in equal proportions. This is not very serious where large rural properties are concerned but, given the problems of the minifundio and of population growth, clearly the distribution system under the Latin-American Civil Codes has become one of the most effective ways of fragmenting the land into ever smaller parcels.
The situation is worse for the woman in a de facto union, as she is a forced heir only in cases where a female spouse would have inherited anyway and only in countries where these unions are legally recognized. As noted already, a prerequisite in several countries is that there is no impediment to marriage - a condition that often rules out recognition and, therefore, the possibility of inheriting.
As regards succession to land allocated under agrarian legislation, the treatment of married women and partners in consensual unions varies from country to country. For instance, the agrarian law in Paraguay and Venezuela recognizes neither companions' nor married couples' right to inherit or to be allotted land that has been abandoned by the principal allottee. Agrarian law differs from civil law here. In countries such as Colombia, Costa Rica and Uruguay, the Civil Code does not recognize de facto unions, while the agrarian legislation recognizes the spouse's or regular companion's right to inherit the plot allocated under that legislation. The proportion of women gaining access to land has not increased significantly because of this, however. Under the agrarian laws of other countries - Honduras, for instance - the son may be chosen to inherit the land, and a childless woman may be denied the possibility of inheriting the plot allocated to her husband or companion even though she has worked the land with him.
Because of the requirement in some countries that the heir shall have worked the land personally, plots have been allocated to elder sons even though the women may also have worked them. This stems from the fact that the work a woman does outside the home is considered of secondary importance. Under the rules such as these, adult daughters are excluded if they have brothers. This shows that, in practice, the traditional family structure takes precedence, through the operation of the right of [male] primogeniture, a principle taken over from Spanish Law but not written into Latin America's Civil Codes.
Attention is drawn once again to the highly precarious situation of rural women in de facto unions in many Latin-American countries. This is the most common form of union in the rural areas, and failure to give it legal recognition leaves the woman totally unprotected.43
(43 It is reported that in the countryside in some countries most unions are consensual. In other countries marriage appears to be more common in mountain than in coastal areas. Not all countries have statistics on this matter.)
Recent studies on women and land tenure have shown that in all these countries women who own land in rural areas belong to the poorest, smallholder or minifundio sector.44 However, the actual number of women smallholders and how they obtained their land are not known. Many Latin-American women work land to which they have no title, and this is a further complication. Women who own land and women who work land to which they hold no title are usually heads of households. Their number has increased in recent years with the rise in male migration associated with problems of civil strife, guerrilla activities or drug trafficking.
(44 LEON DE LEAL, M. et al. 1987. Acceso de la mujer a la tierra... Op. cit. pp.10-43.)
As explained in Chapter I, Latin-American Agrarian Reform stemmed from this century's peasant struggles for land, jobs, dignity and the preservation of peasant cultures. In some countries Agrarian Reform was the result of social revolution and, since it involved the abolition of the large estates, its implementation radically changed the system of land ownership. This was the case in Bolivia, Cuba, Chile (at the time of Unidad Popular), Mexico, Nicaragua and Peru.
Of these, only Cuba and Nicaragua have made women the main target of agrarian legislation in recognition of the fact that they are the least privileged among the landless. In all the other countries of the region, the philosophy underlying agrarian reforms stemmed from the Alliance for Progress programme and its principles. These reforms did not seek to introduce fundamental changes in agrarian structures: the family was taken as the production unit, in which men and women had specific roles; the woman responsible for reproduction and the man in charge of production. The man, too, was the head of the household. This was why agrarian reform in several countries assigned the role of head of the household to the man, and why the authorities in charge of enforcing the law even now find it difficult to accept the woman as head of the family group.
However, the fact that more and more frequently women are responsible for the family in rural Latin America has prompted Bolivia, Colombia, Honduras, Peru and Venezuela to give women the opportunity to be accepted as heads of household by introducing the relevant provisions in their legislation. Dominican Republic legislation makes mention of widows and deserted women. Nevertheless, the ideology which made the man the head of the household still persists, and the authorities responsible for enforcing the law still fail to do so.
Women's access to land is extremely limited in all these countries (whether or not they transformed their agrarian systems) except Cuba. A rapid review of the situation in some countries will illustrate this point.
Cuba, whose socio-economic system is based on collective ownership, does not allocate land to private individuals, so that no comparison on the basis of parameters used in the other countries is possible. Private property held by small farmers is transferred through succession, and women have full and equal rights. Women also participate actively in the cooperatives, of which they are joint and several owners.
The Agrarian Reform Act passed in Nicaragua in 1981 took a step new to Latin America: it recognized women as the concern and direct beneficiaries of agrarian policies irrespective of their role within the family. This meant, for instance, that women and their daughters could also join cooperatives. The Act dispensed with the requirement that one had to be a head of household enjoy the benefits of the agrarian reform. It is not yet possible to assess the result of this change. Statistical data obtained in 1984 showed that the number of individual titles granted to men and women still differed significantly.
In other countries such as Mexico, Bolivia and Peru, where agrarian reform changed the land ownership system substantially, the woman has not gained equal access, mainly because the real target of these reforms was the family, and by tradition the man is considered its head. This has meant that the woman has been able to gain access to land only if she is a widow or has been deserted - and has children. A woman without a family has no chance whatsoever.
Although the emphasis of Mexico's Federal Agrarian Reform Act is on economic necessity and not on the traditional concept of the male head of the household, the concept continues to prevail in practice. No more than six percent of women have been allocated land. In a move to assist women, this country instituted Women's Agricultural and Industrial Units (UAIM) to establish crop and livestock farms and rural industries, as a means of setting up farms and rural industries to be run collectively by women over 16 who are not ejido members.45
(45 Ejidos are land areas that were distributed to the people under the revolution (1910-1917). These areas were made up of individual allotments consisting of family plots which were to be farmed collectively.)
The land area of a UAIM is the same as that of a "family holding" under the ejido system; and nurseries, sewing and education centres and other services for rural women are to be associated with it. In theory each ejido has a UAIM, but this is not true in practice. Only 50 000 of the 2 000 000 women working in the agricultural sector (i.e. 2.5%) come under the UAIM arrangements. There are several reasons for this: the plots assigned to the women are too small to allow them entry into the production process. Also, UAIMs have no legal status, so that the women have no vote in the general meetings and no access to credit. The Tempoal and Veracruz UAIMs are exceptions to the rule: they joined up with the existing ejido federation and took advantage of this to gain access to credit, and are performing well.
Men and women have not had equal access to land in any country of the region, not even in those where legislation has removed all barriers to land ownership.
This prompts reflection on the power of customary law to act contrary to fair legislation, and demonstrates that the issue of rural women's legal status will only be resolved when the legal rules are accompanied by a series of supplementary measures so that rights may extend beyond the purely legal sphere and claim effective compliance in the processes of socialization, for it is here that rights are acknowledged or denied.
Because, for instance, women are brought up to devote their lives to others, there will be no difficulty in understanding how hard it is for them to recognize and demand their own rights. It will therefore be a long and difficult task to eliminate the ideology which makes women subordinate, given the image women have of themselves, their position within the family structure and the attitude of those who wield power at all levels.
Laws must be accompanied by enforcement regulations and monitoring mechanisms and penalties must be established to deal with those who contravene or fail to implement the rules.
For development in Latin America to proceed on a sound footing rural women must be brought fully into the production process. Even so, the difficulties for this large section of the rural population in gaining access to credit are part and parcel of the problem of access to land and other productive resources. A rapid review of the way rural people, especially the men, obtain credit 46, may give an idea of the gravity of the problem facing the rural woman.
(46 GARCIA, A. 1982. Modelos operacionales ... Op. cit. pp.171-180.)
The financial model which all Latin-American countries except Cuba (and Nicaragua during the Sandinista period) have adopted to attract savings and channel investment is based on a capitalism brought in from outside. In general, and in agriculture in particular, this model has made modernization possible, though maintaining the current internationally accepted division of labour and, within this, a gender-based division of labour reflected in both law and practice.
The financial model in question responds to the operational requirements of the economic growth model adopted at the end of the First World War, where economic development does not necessarily imply social development. With the excesses of the import substitution phase and its accompanying industrialization, which funnelled masses of people into the cities, creating megapolis in the process, and the added transnationalization of the economy, a market economy came into being and, with it, the apparatus to provide the needed financing.47
(47 LANDAU, G.O. 1980. El BID y el financiamiento del desarrollo en America Latina. Mexico, Comercio Exterior. p. 331. (N° 40).)
Funding institutions, vital to the establishment of government policies to get the market economy under way, sprung up and multiplied. Almost all the countries relied on the expansion of export agriculture to support this model except Chile, Peru and Venezuela, which relied mainly on their mining sector. In any event, the fact that the imported goods needed for the implementation of this model had to be financed with foreign currency obliged state and commercial banks to concentrate their credit resources on export-oriented agriculture.
Rural economies, unprepared for this model, were virtually excluded, even though several countries had set up networks of state-controlled agricultural funding institutions. Small farmers found themselves having to comply with commercial terms of credit. Priority was given to those able to provide mortgage* security. Small farmers, who were not accepted as creditworthy by the banks, continued to rely on the rural moneylenders, thereby ruling out any possibility they might have had of building up savings.
There are no detailed statistics showing how rural women have obtained credit whether from banks or from rural credit networks run by private moneylenders. The legal and actual obstacles to women's access to land already described may give a rough idea of the difficulties women have in obtaining credit. As already noted here, access to land and credit are closely linked. The rural man's situation with regard to credit may be precarious, but certainly not as precarious as the women's.
Access to credit is made even more difficult for the rural woman by the way credit is related to other areas of law embodying discriminatory rules. In the countries where marital authority is a matter of law, a woman cannot offer her assets as security without her husband's permission. In all other countries, marital authority is traditionally observed in the countryside by couples and by those in charge of lending agencies. It would be difficult to find a rural woman who did not ask her husband's or companion's permission to apply for a loan, and many countries often also require the husbands to be joint debtors with their wives.
Different countries have perceived and tackled this problem of women's access to credit in different ways. In Colombia, for instance, a number of institutions involved in agricultural development have set up special divisions to see that more credit is available for rural women. The Colombian Agrarian Reform Institute (Instituto Colombiano de Reforma Agraria - INCORA) deals with credit for women through its Agricultural Fund (rondo Financiero Agrario - FINAGRO). The Integrated Rural Development Fund (rondo de Desarrollo Rural Integrado - DRI) and the Corporation for the Promotion of Support for Associated Enterprises (CORFAS) also provide credit to women. Another specially created institution here is the Rural Credit Fund (Crédito Rural Financiero). Unfortunately, despite calls for the establishment of a system of collateral in these institutions, credit continues to be granted to those able to provide a real-estate guarantee. Nevertheless, Colombia's willingness to effectively incorporate women into production has found expression in a number of regulations and measures which, despite the obstacles, are bearing fruit.
The National Bank of Cuba runs a credit programme for rural women, but statistics on the number of women beneficiaries and the amount loaned are unavailable. Mexico accepts the possibility of collateral security but authorizes the credit institutions to ask for additional guarantees. Members of Women's Agricultural and Industrial Units are given priority for credit. In practice, however, rural women in Mexico have been unable to obtain credit due to a shortage of funds, the fact that women are poorly-organized, and the lack of credit lines for women anyway. Also, the UAIMs have no legal status - a real impediment. It would appear that Mexican legislation is a greater barrier to women's access to credit than custom.
Ecuador, El Salvador, Honduras, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela do not explicitly single out rural woman for special attention where credit is concerned. The legal situation of these women must vary widely in the countries just mentioned, but the only figures available are for Ecuador, where no more than two percent of National Development Bank loan recipients are women. In Brazil loans go mainly to the large landowners. In Bolivia, women have to show that they are either single or widowed and that they own their land in order to obtain credit. Honduras is the only country where there has been an experiment offering special credit to women, and it was not successful.
Colombia is thus the only one of the countries mentioned to have shown any real concern for the rural woman's credit problem and to have established, as noted earlier, special lines of credit for women in the credit institutions.
This rapid account of the problem of credit illustrates how:
(a) Latin-American rural women do not enjoy the same advantages with regard to credit as rural men, whose situation is also very precarious under the general terms of free market financial policies;
(b) most countries do not have special lines of credit for women. The fact of applying the same conditions to both men and women excludes women, with their special and precarious status, from the credit market. This shows that economic and legal policies cannot be neutral for, even though they may not be intended to discriminate, the mere fact that they fail to take special problems into account is in itself discriminatory;
(c) the lack of statistical data on credit allocations by sex and activity in some countries precludes any accurate diagnosis and the rectification of credit policies there;
(d) the lending institutions' preference for mortgage security continues to be a serious obstacle to rural women's access to credit; and
(e) the unequal legal treatment of women under the various branches of law gives rise to conflicts in interpretation and in the way the law is applied - a situation that operates always to the detriment of women.
Few countries offer technical training programmes geared specifically to rural women, though in Cuba growing numbers of them are participating in technical courses, cooperative members making the most progress here. The female members of isolated rural families, where it has been the custom for training to focus on traditional types of work, are not so lucky. Women's participation in technical training related to productive activities has been good in Nicaragua and Colombia, where a number of rural technical training institutions expressly target women.
In the other countries large numbers of women attend training courses geared to improving their traditional homemaking and handicraft skills, but women are almost totally absent from technical training which would help them to contribute effectively to production and development.
In countries where women do have access to technical training, they nevertheless cannot find jobs. Because of the widely-held prejudice of male technical superiority, women have not often managed to get jobs involving the use of technology in agriculture.
The problem of technical training for rural women is directly related to the commonly conceived scope of such training, and to the resulting course orientation. It is A. García's view (1982) that the aim of rural training should be to place the rural people - individually or collectively squarely within the specific context of their society; to transmit certain theoretical and practical ideas on the nature and operation of production cooperatives; to teach farmers the rational management and use of the natural resources and institutions of their rural environment; and to encourage them to understand and participate in economic, cultural and technical activities designed to transform society.
Forward planning for the benefit of rural women implies an educational process involving both men and women, and geared, first and foremost, to developing a new awareness of women's role in the production and development process. It should also aim at developing women's awareness of the importance of organization, initiative and participation, and include courses in resource management and technology to enable them to catch up with men, with due regard to the special components and characteristics of women's work.
This is all-important, but women's reproductive responsibilities should not be ignored either, for to do so would in itself be discriminatory. If women are to participate effectively in development their workload must be lightened. Men and women must be made aware of the need to share domestic tasks and of how technology can simplify these.
Agrarian law should take these factors into account and confront the problem globally and in a coordinated manner. Legislation establishing strategies and tools to achieve these objectives would gradually improve the rural woman's presently unfavoured status in the area of technical training.
One of the most important aspects of technical assistance is its role in training. There is a strong link between technical assistance and supervised credit - one of the points of the Alliance for Progress which inspired most Latin-American agrarian reforms.
Technical assistance was to have been provided by extension agents through organizations such as cooperatives and credit unions. In practice, however, it was usually provided by bureaucrats who had a top-down conception of their functions, whereas rural extension should be a highly effective and invaluable form of peasant training. Training was to cover crop and livestock management as well as the organization and planning of farming activities generally. Technology transfer and that of other farmer training techniques are brought into operation through demonstrations which must, of course, be geared in with everyday farming practices. While the service itself and the conditions under which it is offered leave much to be desired, male rural credit recipients have usually been able to benefit. Rural women have not been so lucky. They have been excluded from technical assistance by tradition and because they cannot meet the eligibility requirements. As technical assistance is closely connected with credit, the fact that women are denied access to land and membership in farmer-type associations means that they are unable to have a share in this production resource on the same terms as men. The only programmes in which Latin-American rural women have usually been able to participate are those designed for homemakers, which do not take account of their productive role.
Even so, women's access to technical assistance is not the same throughout the region. Because their membership in production organizations is high in Cuba and Nicaragua, many women there have benefited from technical assistance. In Colombia, with the special credit lines provided by many credit and development institutions, more women are receiving credit, and this has improved their chances of obtaining technical assistance. Nevertheless, the fact that experts have become increasingly bureaucratized, and that there is a tendency to orient it to activities associated with women's reproductive role, has limited the impact of technical assistance.
Farmer participation in development through organization is one of the most effective ways of bringing about change in the rural sector. Indeed, almost all countries whose rural development policies include access to credit, training and technical assistance give high priority to farmers' organizations in consideration of their role in production.
Of course, the State is largely influential in deciding how important a role the indigenous organizations, borrower federations, peasant beneficiary associations, cooperatives, etc., are to play in the agricultural sector and how cultural ideology will affect the running of the productive organizations. Nor are all these organizations of equal weight.
The State's views are paramount here, not only as to how it ranks the organizations, but also as to how it conceives the mechanisms to allow them to accomplish their role. The historical, political and socio-economic contexts must be taken into account if these organizations are to become true protagonists in their countries' development. The same holds for women but, given their exclusion from the producers, associations, the appropriate thing would be to address this problem specifically in the law and the way it is enforced via an institutional approach as well.
Colombia's National Association of Peasant and Indigenous Women (ANMUCIC) illustrates what has just been said. Although fairly new (1986) and with a rather small membership so far (30 000), it has succeeded in making its voice heard: it is represented on the board of management of the Agrarian Reform Institute (INCORA), the National Rehabilitation Programme (PNR), the Integrated Rural Development Fund (DRI) and the National Trainee Service (SENA). This would not have been possible without the political will of the Colombian Government.
The State's conception of these organizations and of the importance of women's participation in them is influenced by cultural ideology. For instance, the philosophy underlying the gender-based division of labour acts in most cases as a tacit barrier to women's membership in producers' organizations. Women naturally participate actively in organizations directly linked with "social reproduction". Religious or civic organizations involved in education, health or home economics have a high proportion of women members, but they support the men in production or political organizations only in times of crisis.
There are no laws or regulations that explicitly exclude women from producers' organizations, any exclusion being related rather to the consequences in law of their situation with regard to other productive resources and to tradition. The major obstacle facing women's productive organizations and each of their members may thus be said to be the cultural prejudices surrounding their role in the family and society.
In countries such as Costa Rica, Panama and Uruguay female education indicators are much higher than male48, but the rate of women's participation and the number of management posts held by women in production organizations fail to reflect this. This raises questions about the assumption made in the case studies and in the 1990 Regional Round Table's discussion paper. Literacy would not appear to modify the parameters defining women's field of activities. If these are to change, education will have to transmit, within the framework of the society in which women live, a number of theoretical concepts about the nature and form of their participation to enable them to have rights on a par with men and to become agents of development and to be seen as such.
(48 Data submitted at the Regional Round Table, mentioned earlier.)
This is a point to remember in any analysis of the 1990 FAO case studies on women's organizations in five Andean countries.49 While these studies pointed to significant differences between the countries, stemming from the specific features of their governments' policies with regard to women's production organizations and to cultural and ethnic problems (especially in Peru and Bolivia), there are also similarities concerning constraints and achievements.
(49 These studies were coordinated by consultant Ofelia Gómez. The following is the list of the consultants and the organizations in which they conducted their studies: Carmen Llanos Vargas and Maria Elena Angeleri: Confederación Nacional de Clubes de Madres de Bolivia (National Confederation of Bolivian Mothers' Clubs); Cecilia Restrepo G.: Asociación Nacional de Mujeres Campesinas Indígenas de Colombia (Colombian National Association of Peasant and Indigenous Women); Rocío Rosero G. and Amparo Armas: Organización de la Union Popular de Mujeres de Loja, Ecuador (Loja Women's Popular Union); Blanca Fernández and Cony Alagón: Federación Departamental de Campesinos del Cusco, Peru (Cusco Peasants' Departmental Federation); and Ana Cecilia Valdez and Jorge A. Márquez: Círculo Femenino Popular de Puesto de Nutrias de Barinas, Venezuela (Puesto de Nutrias de Barinas Women's Club, Venezuela).)
Many of the women's productive organizations in the Andean countries were promoted in response to the governments' agrarian policies. All the case studies showed how difficult it was for women to breach the barrier of the traditional beliefs held by the government officials and the society in which they had to go about their task. For the rural women's organizations this has meant the persistence of the "aid" model: little technical training in production matters, insufficient access to funding institutions and little regard for the organizations' role.
For the members of the women's organization, the problems caused by these rigid traditional beliefs have added to their workload due to their domestic responsibilities. Their lack of schooling and their difficulty in asserting their role was also noted. One major obstacle confronting indigenous women in Bolivia and Peru, especially in the Aymará areas, is that the traditional organizations or farmers' associations do not admit women members.
As for achievements, it was noted that women's organizations were active in their communities and that there was now greater appreciation of for their activities. Women's experience in organizations had helped them to increase their self-esteem, overcome their shyness, develop gender awareness, and improve family relations. There has been a change in their husbands' attitude, and that of the other family members, males included, who now help in the home, making it easier for the women to participate actively in their organizations.
Despite this, most women continue to play a secondary role in production organizations. Although the proportion of women members is higher in Cuba and Nicaragua than in the other countries of the region, not even there do women account for as much as half of the membership or represent the majority on the management boards of these organizations.
As regards exclusively female organizations, only in the above two countries and Colombia and Venezuela have these been successful economically. There have been a few exceptions in Mexico and Uruguay, but in all the other countries women reportedly continue to organize themselves in activities that are largely an extension of their domestic duties - the result of training that takes no account of market requirements or the need for women to play a leading role in development.
