The legal status of women in the context of agrarian reform - Leila Barsted

Summary

This study weighs women's legal rights to equality in public and private life under Brazilian law since the 1988 Constitution against their situation in practice, in the context of agrarian reform. The analysis is informed by a gender perspective, which is fundamental in understanding how women's theoretical rights fail to make the intended difference in everyday life. As agrarian law has not been codified, a detailed examination of the national legislation as a whole was necessary to deduce the current state of women agricultural worker's rights in Brazil.

An FAO study of the legal status of rural women in Latin America and the Caribbean found constitutional norms in place, ensuring equity of rights between men and women, in almost every country of the region. But although national constitutions take precedence over other laws, civil, agrarian and labour laws still operate norms based on male supremacy in family relations and submission of women. Hierarchical thinking is ingrained so that citizenship in practice entails something different for (first class) men than for (second class) women. This study examines what progress has been made in women's exercise of their rights in Brazil's agrarian context and what the current relationship is between rights and social customs, values and behaviours.

The revision of the Brazilian Federal Constitution in 1988 changed the spirit of civil legislation in a long-overdue way. Agrarian law, which has de facto characteristics of private law, acquired - when seen in the light of the agrarian reform - properties of public law consistent with the Federal Constitution and with the norms of administrative law. But the civil origin of agrarian law remains strong and we cannot ignore the cultural weight embedded in the original text of the Civil Code when interpreting the new law, as this still resides in institutional practices and society. It is fundamental that the same legal paradigm operate throughout the legal system and in all areas of the law, including institutional practices and judicial decisions. In Brazil this effort has not yet been made. As in other branches of law, the authors of agrarian law in Brazil are not concerned with analysing the fact that the legislation impacts differently on men and women. Neither the Civil Code nor the Penal Code have been reformed since the 1988 Constitution was brought in, although reform bills are currently before National Congress.

Introduction

This study details what importance has been given to the issue of gender in the national legislation of Brazil, with a particular focus on agrarian reform It contains a review and evaluation of the relevant legislation, and its implications for women's access to land and other productive resources.

Under Brazil's 1988 Federal Constitution, the equality of men and women in public and private life was recognized, as was women's specific right to land tenure in agrarian reform projects. However, it is noted that this equality is only formal and is in various ways contradicted by the norms of civil law. Agrarian law, mostly influenced by civil legislation prior to the 1988 Federal Constitution, still contains expressions and allows for interpretations that tend to assume men are heads of households. The ambiguity in the law is reinforced by prevailing sexist practices and customs in Brazilian culture, all of which foster the subordination of rural women.

Researchers and United Nations institutions have contributed to the growing body of information on women's issues but further studies are needed before effective steps can be taken to improve the situation of rural women in Brazil. It is in this spirit that the present study looks into the situation of rural women who are potential beneficiaries of the agrarian reforms in Brazil, and attempts to understand whether the dynamics of Brazilian law include or exclude women from governmental programmes. It also considers the extent to which common law is an obstacle to the inclusion of women in agrarian reform.

This study takes into consideration findings from previous analyses of rural women's unequal access to social benefits, land tenure and credit in Latin America and the Caribbean, especially those surveys carried out in Brazil.

Certain difficulties were encountered, such as the lack of organized statistical data on women's access to agrarian reform programmes. For instance, although it is acknowledged that few women were direct beneficiaries of land adjudication, there are no accurate figures with which to analyse the situation because the 1996 Census of agrarian reform did not gather sex-disaggregated data. Additionally, the fact that agrarian law is dispersed among numerous laws, decrees, temporary measures and norms internal to INCRA (the National Institute of Colonization and Agrarian Reform), and has not been codified, represented a challenge in evaluating the law. A detailed examination of the national legislation was necessary to deduce women's additional rights which, although not specifically related to land tenure, refer to women in general or to rural women in particular, such as rights to maternity leave, child-minding or retirement.

This study seeks to contribute to the integration of rural women as beneficiaries of agrarian reform and to raise awareness among development practitioners, planners and policy makers on rural women's rights.

Gender as a concept and political instrument

The 1975 First World Conference on Women organized by the United Nations and held in Mexico was the stimulus for undertaking studies to shed light on the conditions under which women perform their various roles, and for analysing the causes of women's position in society. The 1979 Convention on the elimination of all forms of discrimination against women, at length ratified by Brazil in 1994, made these aims explicit, and now a vast body of studies testifies to the discrimination experienced by women.

Since the 1980s, studies identifying imbalances and hierarchical structures in relations between men and women, and other social inequities, have been given new impetus with the introduction of gender analysis. This type of analysis seeks to account for the cultural significance - beyond biological differences - of masculinity and femininity. Gender analysis takes the position that historical and social factors determine the ways in which men and women relate; these factors define how society pictures them, and legitimize imbalances in rights and access to socio-political benefits. Definitions of masculinity and femininity change in relation to the specific historical, social and cultural contexts, and are shaped in a dynamic process.

Gender studies carried out by anthropologists largely emphasize parental relationships and seek to understand the significance and dynamics of the social roles of men and women in the family context. Later studies have highlighted other social spheres, for example linking gender to socio-economic status and race.

Gender has become a central element in the political discourse of the women's movement - as distinct from the idea that femininity in itself explains the subordination of women - and it underpins the struggle for gender equality. For feminists, subordination is explained by the symbolic value assigned by culture to biological differences between male and female. 'Male' and 'female' qualities are extrapolated from these symbolic values; these reifications are discriminatory and serve as the basis of power relations. To speak of gender relations is to consider how relations between men and women are constituted in view of the distribution of power.

Gender is defined as follows in the 1996 - 2001 FAO Plan of Action for women in development^[14]:

"Gender refers not to women or men per se, but to the relations between them, both the objective and the subjective. Gender is not determined biologically, as a result of sexual characteristics of either women or men, but is constructed socially. It is a central organizing principle of societies and often governs the processes of production and reproduction, consumption and distribution." (FAO 1997)

The study of social structure and civil law, informed by an awareness of genderrelated issues, reveals the extent to which modern states and societies have excluded women's rights in the formulation of laws and in their interpretation. Interpreting statistical data taking gender into account has proved to be fundamental in understanding why, for instance, so few women are beneficiaries of agrarian reform. Gender awareness is essential in formulating laws and policies that aim at gender equity.

Women's rights in the international context of human rights and sustainable development

The Universal Declaration of Human Rights, approved by the United Nations in 1948 and signed by Brazil that same year, states that "everyone" has the right to a set of economic, political, social, cultural and environmental benefits. It adds that no form of discrimination based on race, sex, religion, culture or other attributes will be tolerated. Women's rights were nevertheless neglected for many years. Only during the 1960s did international instruments created by the UN make it possible to reword the Universal Declaration of Human Rights and substitute the generic expression "everyone" with the definite categories of "men" and "women".

The UN Decade for Women (1975 - 1985) contributed to the international declaration of women's rights by highlighting political, economic, social and cultural discrimination, strengthening the hand of women's movements worldwide, and acting as an incentive to bring discrimination against women to an end. The Decade for Women began with the First World Conference on Women in 1975, at which it was agreed that it is fundamental for the UN to work towards changing the framework of laws and social practices that allowed discrimination against women to flourish. This gave official recognition to the seriousness of the social situation of women all over the world and to the criticisms and complaints of the women's movement. The conference fully recognized that women have a role in setting the international agenda, and that their equitable participation in the development process is important.

The 1979 UN Convention on the elimination of all forms of discrimination against women^[15] is a historic landmark in the international definition of women's human rights. It defines discrimination against women as:

"...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." (Article 1)

In its Preamble it states:

"Discrimination against women violates the principles of equality of rights and Gender and land compendium of country studies 40 respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity."

The Convention outlines the contribution made by rural women to their family livelihoods, and the specific problems they face. It urges Member States to adopt appropriate measures to eliminate all forms of discrimination against women in rural areas, and to encourage women's participation in development. For instance, Article 14 stipulates that women should have access to formal and informal education and training, agricultural credit and loans, marketing services, appropriate technologies, and equal opportunities in land and agrarian reform and resettlement schemes. (Article 14d, g)

In 1985, the World Conference on Women in Nairobi brought the UN Decade for Women to a close, reiterating that social, economic, political and cultural factors all present major obstacles to attaining equality between men and women. Its Final Report emphasized the need to take action to ensure that gender equality was recognized in law, and to promote social and political equity - including participation in decision-making processes and access to employment, health services, food and the environment. The Conference also adopted the Forward-looking strategies for the advancement of women, calling for women's participation in the management of ecosystems and in the control of environmental degradation. (Chapter 24, 2a)

The inclusion of the gender perspective in international legislation began to bear fruit in the 1990s, with a series of United Nations human rights conferences. The UN Conference on the environment and development held in Rio de Janeiro in 1992 explicitly addressed the issue of gender equity. The resulting document, Agenda 21, contains proposals designed to improve the status of women and reverse the degradation of the various ecosystems crucial to life on earth. Agenda 21 also recognizes the importance of developing a sustainable agriculture that produces food for the population of the planet while conserving and rehabilitating the earth, and it recommends that all countries apply the strategies adopted at the 1985 Nairobi Conference.

The UN conferences of the 1990s provided a reaffirmation of the principle that women's equal importance in development - in all areas of public and private life - should be recognized.^[16]

At the request of Member States, the FAO Plan of Action for the integration of women in development (1989) assessed the need for governments - and for its own technical divisions - to intensify their legal, economic and social decision-making in order to recognize women's equal importance in development by means of systematic data collection and the promotion of appropriate policies and technical assistance.

The focus of the various UN treaties, conventions, pacts and action plans to result from these international conferences has been twofold. They have emphasized the need to sustain the effort to integrate women in the development process, so as to diminish the disparities between the male and female condition. They have additionally managed to keep women's citizenship issues in view.

The Brazilian Federal Constitution of 1988 undertakes to safeguard the rights and guarantees expressed in international treaties and conventions ratified by the government (Article 5, § 2). In accordance with international instruments for the protection of human rights, it acknowledges equality between men and women in public and private life. This recognition is influencing legislation hierarchically inferior to the Constitution, particularly the Civil Code. In this way, a new legislative doctrine based on the international law of human rights is beginning to take shape. This is the context in which legislation and institutional practice on the rights of men and women concerning land tenure and land use should be seen.

Agriculture, legislation and gender in the Latin American context

Women, who account for half the region's population, make a significant contribution to human progress. This contribution is unpaid and unrecognized. It is impossible to conceive of continuous development, and the building of democracy, family and community well-being, without recognising women's potential - especially that of rural women - and without integrating this recognition into strategic plans and programmes aimed at resolving the economic and social crisis of the developing nations and obtaining a sufficient supply of food. (FAO 1993: 11)

The 1980s were characterized in Latin America as the lost decade, referring to the worsening of poverty in the continent. The concerted application of international structural adjustment policies in the 1990s brought, along with more positive economic indicators, a decrease in public spending on social programmes. In rural areas, various economic, political and cultural processes were underway, notably an increase in rural-urban migration (even in 1990 barely 30 percent of Latin Americans lived in rural areas, according to FAO 1995b) and a new model of agrarian reform motivated by the idea of a commercial market in land. This model subjects the purchase of land to the economic laws of supply and demand while at the same time proposing to market agricultural products without addressing issues of infrastructure, services and financial support. Such a model is neither appropriate nor viable for campesiños (farmers) and is even less so for rural women who suffer from discrimination and live in a situation of acute poverty. (FAO 1998: 3; FAO 1993b)

In line with the Plan of Action for the integration of women in development, FAO began a systematic analysis of the legal status of rural women in Latin America and the Caribbean. This resulted in the publication of a work illuminating the historical roots of rural Latin American women's subordination in law and outlining their current situation, along with recommendations and proposals for legislative change^[17]. (FAO 1994a)

The Napoleonic Code, which in the nineteenth century served as a model for the civil codes of the region, still influences civil law today. It created such institutions as 'marital authority', whereby a woman's person and her goods were subject to her husband's special privileges - for example, to represent the family in law, administer the common and private assets of his wife, choose the marital home, and exercise paternal authority over the children. (Deere and Leon 2000) One of the enduring consequences of the institution of marital authority is the concentration of rural and urban property in the hands of men. Women no longer have access to land in equal proportion to men, even in countries where the law has eliminated all the obstructions placed in women's way.

Civil law embodied a sexist view of gender relations and favoured customary practices that reinforced this ideology. Only with the great legislative upheavals in the region during the 1980s was the strength of custom revealed, and the extent to which it was legitimized by civil codes in operating against egalitarian laws became clear. Deeply rooted customs, traditions and attitudes had influenced laws and institutions, preventing women from being able to access land on equal terms with men. Development programmes rarely incorporate a gender perspective or take into account the different needs of men and women; tending rather to reinforce traditional roles. The weight of custom in favour of legal, structural, cultural and institutional exclusion was such that women heads of household could not benefit from agrarian reform; and in cases where women did hold title to land, it was generally the poorest land and smallest holdings.

The fact that most agrarian law is relatively recent and has developed unevenly means that the civil code has been applied whenever there have been gaps in the legislation, with consequent discrimination against women.

Further, in countries such as Bolivia, Mexico and Peru, where the prime objective of agrarian reform was the family, women's access to land resources did not improve since the man was traditionally considered to be the head of the family. This was also the case in Brazil.

Where agrarian legislation does recognize that women are entitled to benefit directly from agrarian reform, e.g. in Honduras and Nicaragua, discriminatory practices that limit access to land persist under cover of their civil codes. Even in Cuba, where agrarian and civil laws proclaim the equality of men and women, in practice more men than women own land, participate in cooperatives and occupy managerial posts.

The law in the Dominican Republic expressly states that men are to be the beneficiaries of agrarian reform, with the civil code behind it in declaring that the man is the head of the family and the administrator of all assets, without recognizing consensual union in its legislation. That situation contrasts with Cuba, Honduras and Nicaragua where women living in de facto unions do have the right to benefit from agrarian reform, so long as the union has been recognized by a competent authority. (FAO 1998:11)

Legislative reforms informed by a gender perspective are necessary, in order to facilitate women's access to land; but these alone are not sufficient to produce effective change. Discrimination against rural women will only end when laws are accompanied by complementary measures such as training, access to credit and infrastructure, so that human rights are grounded in social practice and not just words on legal paper.

It is not all bad news, however. Significant progress in land adjudication and tenure was made in the 1990s in Latin America. As far as women are concerned there are two forms of tenure: joint tenure for couples, independent of their civil status; and another which gives priority to women heads of household in certain agrarian reform programmes. The first - joint tenure - is recognized in Colombia, Costa Rica, the Dominican Republic and Nicaragua. In Brazil and Honduras joint tenure is optional, depending on the couple's request. The second - giving priority to women heads of household - is applied in Colombia and Nicaragua. Since 1995, joint tenure for legally married couples has been established in Peru, while in El Salvador and Guatemala major legal provisions to facilitate women's access to credit and land tenure have been introduced. In Chile, women heads of households were given priority in its land tenure for smallholders programme. These changes are the fruit of women's continuing organized efforts within unions, associations and rural workers movements.

Current gender and social movements in Brazil

Women's movements throughout Latin America have established regional, national and international networks in their struggle to have women's rights recognized in the face of adverse political conditions, which have been characterized by authoritarian regimes lacking respect for even the most fundamental human rights. Since the 1970s, women's organized efforts in this regard have, in almost all countries, contributed to the recognition of women's rights and the strengthening of the farming population. Brazil is unique in the region for the efforts of its women's movement in securing legislation that promotes equality of rights, including access to the benefits of agrarian reform.

For a long time, social movements in Brazil organized around the rights of interest groups (rural workers, urban workers, women, blacks) or in defence of specific rights (consumer rights, environmental rights) in a fragmented way. The struggle for women's rights was thus restricted to the actions of women themselves, organized within autonomous movements, non-governmental organizations, universities and unions. Women's specific demands within other interest groups were often seen as divisive in the context of the general struggle and their claims tended not to be integrated in the overall picture but partitioned off into minor departments in unions or political parties. The invisibility of women in productive life was reinforced by their lack of representation within the traditionally male domain of unions.

1975 was a turning point. In the context of the International Year of Women in Brazil and the First International Conference on Women held in Mexico, the feminist movement denounced discrimination against women in laws and in social practices. The events of that year inspired a movement to heighten awareness - and rejection - of discrimination against women, and to elaborate political proposals pushing for legislative reform. This led to specific proposals for reforming the Civil Code, particularly those clauses relating to household rights that explicitly discriminated against women.

The women's movement expanded throughout Brazil to reach all socio-economic sectors, including trade unions, and has influenced other social movements, such as rural unions, which are represented at the national level by CONTAG (the Agricultural Worker's Confederation) and MST (the Landless Movement). Women have laid claim to their full spectrum of rights, including access to the labour market, security at work, pension rights, and access to land and the means to farm it.

The actions of the women rural workers movement were crucial in modifying the Constitution. The women's movement and CNDM (the National Council for Women's Rights) in 1986 presented a Letter from women to the drafters of the Constitution, which had a significant impact, especially when combined with the activities of the 1986 Commission for the support of women rural workers.

Since the 1980s, women's claims to specific rights within the rural trade union movement and for land within the rural workers' movement have intensified. CONTAG took up the struggle for the rights of women rural workers, recognizing their importance in productive and family life, and acknowledging the discrimination to which they are prey. Demands were addressed to the state and to the rural movements themselves, especially to their political leaders. In several Brazilian states, women's movements emerged which sought to have an impact on rural unions, the state and the demographic census that was to be held in 1991.

The struggle of Brazilian women has included getting their labour and social security (retirement and maternity leave) rights recognized in the current Constitution, gaining access to land, and gaining visibility in legal land tenure documents such as the Nota del Productor Rural (Rural Producer's Record), which is official proof of participation in productive activities entitling the holder to benefit from social security and agrarian reform programmes.

In the trade union movement, the creation of CUT, the unified Central Unica dos Trabalhadores (Central Workers' Union) led to the establishment of the pioneering National Commission on the question of women workers. One outcome has been the policy of quotas ensuring women's representation in unions, politics and administration.

The women rural worker's movement has strongly promoted the goals it set out to achieve in the 1990s. After a long process of engagement - through pressure tactics and dialogue - with the state, it has got the MDA (Ministry of Agrarian Development) to embrace the gender perspective in all its administrative instruments, specifically resolving to define selection standards so as to facilitate women's access to the benefits of agrarian reform. (Resolution No. 6: 2001)

The Federal Constitution does recognize the rights of women rural workers in relation to household production and the right to organize politically. However, according to INCRA documents (1994, 1998, 2000), these provisions do not meet the standard set by UN recommendations on making women's participation visible. Official statistics and analyses refer to recipients of agrarian reform in terms of beneficiary households, without distinguishing the sex of individuals receiving the benefits. Progress has been made, particularly in education and health care legislation, but there remains a great gap between laws and social reality when standards of gender equity are applied.

Citizenship and social practices

Citizenship is closely allied with notions of equality and freedom, as well as with the idea that the organization of the state and of society must represent and safeguard the common good. However, this eighteenth century concept excluded the poor, and women, only coming to include theoretically the whole of society in the nineteenth century. The concept of citizenship was broadened during the twentieth century by the practical demands for inclusion of workers, women, black and illiterate people. Their participation in citizenship caused attendant rights to be clarified, so that - in addition to formal liberty and equality - health care, housing, work, security, environment, leisure, culture, and so on were incorporated. Paradoxically, however, the way in which this was done was not always guided by the ideal of equality.

The concept of citizenship is closely linked to that of human rights. Under the legal systems of democratic countries - including Brazil, citizens are considered to have individual and societal rights. Brazil's Federal Constitution of 1988 incorporated the formal declarations in international law of women's rights. But the recognition of rights does not mean that men and women automatically acquire decision-making power in their private lives and in the public domain. The declaration in law of gender equality does not mean that women instantly feel entitled to the rights listed in the Federal Constitution.

Even with laws now in place to recognize the equality of men and women in Brazil, ideologies persist that are real impediments to the full exercise of citizenship. Hierarchical thinking is ingrained, so that citizenship in practice entails something different for (first-class) men than for (second-class) women. These hierarchical assumptions prevail in the workings of trade unions, social movements and rural workers' associations as much as in the institutional practices related to agrarian reform, and are silently reinforced by a distribution of power that puts men in positions of authority over women. Rural women's rights to land tenure, credit, technical assistance and participation in decision-making are still impeded by this second-class status, subject to the will of men who predominate in public and private arenas.

Citizenship and rights

The term "entitled to rights" in the Universal Declaration of Human Rights expresses the idea that all individuals have fundamental rights that must be recognized, respected and guaranteed by governments. In this respect, entitled means not only having rights but also enjoying the benefits of these rights.

In official statistics on access to work, professional promotion, income, land, credit, training, positions of power, and other indicators, are to be found distortions, contradictions and discriminations that obscure legal rights. The social understanding of the entitlement to rights is afflicted by an ambiguous sentiment, resulting from a lack of real knowledge of human rights along with a perception that relates the exercise of rights to traditional practices.

Although the Electoral Law recognized Brazilian women's citizenship back in 1932, women are still poorly represented in seats of power, in the official functioning of the state, and in society at large. The exercise of rights is even more problematic for women rural workers. Their roles in childbearing and as housewives mask their identity as productive participants in the development process. The fact that the vast majority of rural women carry out work in the home that is unpaid or, if paid, is significantly less well paid than work done by men, in effect subordinates women to the authority of men, who are in any case considered by traditional values and customs to head the household and hold public authority. In this context, rural women by and large do not even consider themselves entitled to rights.

Citizenship and the empowerment of women

At the 1985 World Conference to review and appraise the achievements of the United Nations Decade for Women, it was noted that commitments undertaken by Member States to the Convention on the elimination of all forms of discrimination against women had not been complied with. The Forward-looking strategies were formulated and agreed upon as a means of furthering the expansion of women's rights and public policies confirming women's citizenship.

One of the obstacles to achieving equality between men and women is the gigantic public debt of many countries and its negative effects on people's lives. In its 1996 Human Development Report for Brazil, UNDP (the United Nations Development Programme) drew attention to the fact that, at the beginning of the 1990s, Brazil had one of the highest rates of gender inequality in the world.

The Report of the World Conference to review and appraise the achievements of the United Nations Decade for Women: Equality, Development and Peace made the following recommendation as a way of overcoming this outright gender inequality:

"In rural areas, there are specific processes that exclude women from the development process despite the important productive role they play in areas such as food production. Because women participate in all the phases of production, it is important for development strategies to include them at all levels of planning, implementation and evaluation, thus empowering them. The access of women to land tenure, agrarian reform programmes, financial, technological and other productive resources as well as access to health services, education and social programmes, constitute central elements for the full exercise of their rights." (1985: 174 - 188)

The actions proposed for including women in development led, in the 1990s, to the recognition of the idea of women's empowerment. This notion was adopted in the Plan of Action of the World Conference on Population and Development and in the Plan of Action of the Fourth World Conference on Women, as a resolution to the need for social processes capable of increasing women's scope of action and overcoming discrimination. Recognising a sphere for the empowerment of women is a previously unacknowledged component of a person's entitlement to rights.

Women's movements and associations have made efforts to broaden women's knowledge of their rights, mobilizing women to feel they possess rights and are entitled to exercise them.

Since 1985, international action plans have set various goals to consolidate the recognition of women's empowerment - in politics, administration, maternal welfare, access to jobs and land under dignified conditions, and in combating domestic and sexual violence. These have been exhaustively proposed to UN member countries, among them, Brazil. Women rural workers' organizations have played a vital part in this process by keeping up the pressure for the proper respect for rights deriving from contractual labour relations, for the rights to land tenure, and for all rights related to citizenship. The participation of rural women in workers' associations, in trade unions linked to CONTAG and in movements linked to MST is of great importance in the process of recognising a sphere for women's empowerment.

The response of the state and of society to the demands of women must now be evaluated. What progress has been made in women's exercise of their rights? And what is today's context - the current state of the relationship between rights and social customs, values and social behaviours?

Gender in the context of Brazilian legislation

The tradition of Brazilian legal doctrine until 1988, examined from a gender perspective, appears discriminatory towards women. In recent years, pressure from the women's movement, international conventions, treaties, declarations and plans of action resulting from conferences, especially since 1979, has introduced new content into the dominant legal doctrine so that women are now included in the entitlement to universal rights.

The analysis of doctrine, laws and legal decisions from a gender perspective is a recent development (Ardaillon and Debert 1987, Hermann and Barsted 1995), and the introduction of legislation that incorporates the principle of equity and that refers explicitly to gender equality even more so.

Civil and political rights

Civil rights and doctrines related to those rights are supported by Brazilian civil law, a branch of private law that regulates relations between individuals. The basic premise of private law is that individuals are free and equal in establishing contractual relations from a certain age, provided they are in full possession of their mental faculties. These requirements appear explicitly in the Civil Code (Articles 1410 to 1423) with provisions related to civil contracts - including specific contracts for agricultural activities such as rural, agricultural and animal breeding contracts - which since 1964 have become pacts under the Land Statute and ordinary laws.

The first constitutional norms and the civil law tradition in Brazil did not recognize that women were entitled to rights. In 1934, women's electoral rights were constitutionally recognized. Until 1962, when the Civil Statute of Married Women was passed to increase women's civil capabilities, the constitutional norms coexisted with the original draft of the Civil Code. This Code, especially in the chapter on family and the section on rights of inheritance, placed men in a superior position to women. It was only in the 1980s that restrictions on women's employment began to be eliminated, culminating in 1988 with the new Constitution that revoked all discrimination. (Barsted 1999)

There are preconceptions that need addressing even in this new legislation prescribed by the Constitution, as well as in the legislation pre-existing in codes and laws and in judicial decisions (applied law). The law cannot be reformed or applied, nor can reform projects be evaluated, without an analysis based on establishing principles of equity in the law, in legal doctrine and in the values that guide the interpretation of the law.

The Civil Code and the Constitution of 1988

The Civil Code contains conservative norms regarding family relationships, only recognizing as households those created by civil matrimony, and not granting any legal protection to other forms of family organization. The household described in the Civil Code is organized hierarchically with the husband as head and the wife in a situation of legal subordination. As head of the household, the husband had the sole right and duty to represent the family in law, administer the household assets and the private assets of the wife, and to choose the domicile and provide for the family.

(Article 233) Without her husband's authorization, the wife could not accept or refuse an inheritance; accept tutelage, curatorship or any other public ministry; demand a civil or criminal judgement; exercise a commercial activity; assume reciprocal exchange obligations or exercise a profession. (Article 242) On marriage, women lost their full or absolute civil capacity and were transformed into invalids in relative terms. Until the 1930s, children born before marriage were not legally recognized.

Discriminatory aspects of the Civil Code have not yet been repealed, such as the law granting a husband - but not a wife - the right to seek annulment of a marriage for lack of consummation (Article 219) and the law that disinherits a daughter considered dishonest. (Article 1744) Today this discrimination can be dismissed as unconstitutional. It is no longer the case that married women must solicit the assistance of their husbands in order to claim working rights in Labour Courts and it is no longer the case that a woman has to have her husband's permission to stand witness in a criminal court.

In 1962 the Civil Statute of Married Women (Law No.4121 of 1962) modified the discrimination by recognizing the husband as "head of the household, a function he exercises in collaboration with his wife, in the common interest of the marriage and the children..." (Article 133) After 1975, with the appearance of the women's movement in Brazil, various proposals for reform of the Civil Code were made, in particular for the section on family rights to recognize equality between men and women. These proposals were of fundamental importance for the inclusion of gender equality in the Federal Constitution in 1988.

Divorce Law No.6515 of 1977 introduced modifications, such as the right to alimony in cases of legal separation, recognizing equality of rights and obligations between partners.

In 1988, the Federal Constitution completed a phase of strengthening and recognition of gender equality in public and private life. It confirms the equality of all persons before the law (Article 5), declares that "the rights and duties related to the household are exercised equally by the man and the woman" (Article 226, §5) and provides for the gender equality of men and women in obtaining titles to property or land-use concessions for agrarian reform. (Article 189) Moreover, it recognizes households that are distinct from those created by the bonds of marriage, among other things broadening the right of inheritance to partners in stable unions as opposed to civil marriage. It eliminates differences between children, recognizing equal rights for children born inside and outside wedlock, including adopted children. (Article 227 §6)

The revision of the Constitution changed the spirit of civil legislation in a longoverdue way, especially in relation to family rights, by introducing social and environmental issues into the understanding of property rights. Although the civil law itself has been reformed, we cannot ignore the cultural weight embedded in the original text of the civil code when interpreting the new law, as this still resides in institutional practices and society. This is why all codes need systematic analysis and overhaul before they will reflect a coherent and organic feeling. If societal institutions have explicitly discriminated against women in public and private life, public policies will have reinforced these inequities. It is now necessary to analyse those discriminatory beliefs that persist, continuing to orient social practices and constrain women in the exercise of their rights.

Gender, rights and land ownership

The development of agrarian law as an autonomous discipline is still recent in many countries, including Brazil, where property and land tenure laws - especially those governing contracts - were for a long time restricted by the Civil Code. The Commercial Code only dealt with issues to do with the marketing of agricultural products. Agricultural workers' rights were not included in the Labour Law. Their rights have been recognized since 1963 by the Statute of Rural Workers, and by the creation of SUPRA (the Agrarian Policy Inspectorate) and FUNRURAL (the Rural Workers'Assistance and Pension Fund) whereby they are assured of pension rights for invalidity and old age, for instance.

The norms of agrarian law acquired constitutional status with the sanctioning of the Federal Constitution in 1988. Agrarian law, which has de facto characteristics of private law, acquired - when seen in the light of the agrarian reform - properties of public law consistent with the Federal Constitution and with the norms of administrative law approved by state bodies such as MDA and INCRA. But the civil origin of agrarian law remains strong and accounts for the gender inequities that unintentionally lead to discrimination against women. As in other branches of law, the authors of agrarian law in Brazil are not concerned with analysing the fact that the legislation impacts differently on men and women. So, for example, Law No.4947 of 1996 uses generic expressions such as "tenants, lessees, owners, occupiers" in the masculine plural in referring to persons entitled to benefit from agrarian law.

Land ownership in Brazil has evolved though several phases, at every stage being accompanied by the cultural and legal principles of male power in public and private spheres. (Ferreira 1988) The first phase, lasting until 1822, is that of the sesmarías, abandoned lands given to colonial settlers by the Portuguese Crown. The second phase, from 1822 to 1850, is that of the useful possession of land, whereby anyone could settle on land so long as they complied with the obligation to keep it productive. The third phase was introduced by Ley de Tierras (Land Law) No.601 of 1850, which constrained heads of state to regulate the older sesmarías, useful possessions and other forms of occupation of land by granting personal definitive and full tenure. This law actually unified two different institutions, by transferring to private individuals the estates (which belonged to the state) and useful possessions (already held by individuals), prohibiting the acquisition of unoccupied land under any form that is not a purchase. (Article 1) This in effect established an absolute precedent for private ownership of land, underlying the development of large-scale extensive farming in Brazil and the difficulties encountered in giving land a fully social function.

Constitutions in force in Brazil since 1864 have recognized the inviolability of rights, including the right of ownership, without exceptions for reasons of race, sex or social status. Prior to that, the Constitution of 1834 guaranteed the exercise of property rights in conformity with the interests of society. In the 1988 Constitution now in place, ownership is among the fundamental rights and guarantees, explicitly specifying that its social function is to be maintained. This is the first Brazilian Constitution to establish the explicit right of women to obtain land tenure or concession titles under agrarian reform plans, and to guarantee equality between husband and wife. (Articles 189 and 226)

Legislation underpinning a substantial part of agrarian reform began with Estatuto da Terra (Land Statute) Law No.4504 of 1964, influenced by the Civil Code. The Estatuto establishes:

"...measures aimed at promoting a better distribution of land, through the modification of the rules of ownership and use, with a view to upholding the principles of social justice and increasing productivity". (Article 1 §1)

In conformity with the Estatuto, agrarian reform:

"...seeks to establish a system of relations between men, social justice, progress, the well-being of rural workers and the economic development of the country, with the gradual elimination of smallholding and large scale farming" (Article 16),

with large scale farming being punishable by expropriation in the interests of society.

As this agrarian reform implicitly referred to the Civil Code, in which male household headship is the norm, this had an inevitable knock-on effect on the way in which agrarian policies were implemented by administrative bodies.

The bodies linked to agrarian reform are:

The result was evident in the statistical data of the 1996 Census of Agrarian Reform, with the low percentage of female land beneficiaries. It seems that the process of selecting beneficiaries of the agrarian reform involved applying double standards to the male and female labour forces, penalizing predominantly female households and women rural workers who saw their work underestimated. In a 1986 decree, MIRAD directed INCRA to treat men and women equitably under the law in assigning rights to land tenure, putting an end to the system of double standards.

Until 1986, land redistribution programmes were clearly based on mechanisms that discriminated against women. And despite many federal, state and municipal laws, not to mention pressure from grassroots social movements and rural women's organizations, the inclusion of women in the process of social emancipation and access to land is still precarious.

The 1988 Constitution guarantees the granting of non-negotiable ten-year property titles and land-use concessions, adding that "the property title and the land-use concession will be granted to men or women, or both, independent of their civil status, according to the terms and conditions sanctioned by the law". (Article 189)

Distribution of land ownership titles and land-use concessions for the purposes of agrarian reform is based on the "social function of property" and the "reduction of regional and social inequalities". (Article 170, headings III and VII of the Constitution on economic and financial matters) Agricultural policy should be planned and implemented with the participation of rural producers and workers, along with representatives of the marketing, storage and transport sectors. It should take into account factors such as: prices compatible with production costs and a guarantee of marketing; technical assistance and rural extension; agricultural insurance, cooperative participation; rural electrification and irrigation; and the empowerment of rural workers. (Article 187)

A fundamental question, addressed for the first time in the mid-1990s, was the lack of regulation and enforcement of a whole set of constitutional norms. The need for legal underpinnings to regulate mechanisms of agricultural policy, priorities, crop planning, marketing, supply, external markets and the institution of agricultural credit was recognized as a result. (Act of Transitory Constitutional Provisions, Article 50) It is hoped that this law will incorporate a gender perspective into elements of land tenure policy.

The diversity of land tenure in Brazil requires diverse laws and policies capable of addressing issues of gender equity. For rural wage earners it is fundamental that there should be no back-sliding in the labour laws. For land-owners it is important to debureaucratize the processes for the recognition of usucapio (acquiring rights to land through uncontested possession within the terms established by law). For landless workers it is vital that rural settlement policies should proceed.

State Constitutions of 1989 and Organic Municipal Laws of 1990 followed from the 1988 Federal Constitution and included subsidiary norms which, in some cases, contributed to the process of land access and other necessary agrarian reforms, complementing the policies of the federal government. In an ongoing process of decentralization, INCRA has since 1995 signed conventions with state governments to form corporations charged with various administrative duties, from ensuring that communities have the infrastructure they need, to staking out plots of land and providing technical and legal assistance. None of this intense legal activity at the federal and local level was undertaken in the context of a public policy on agrarian reform incorporating a gender perspective.

Acareful reading of all the legislation that derives from the Constitution reveals that the plural terms used in the Portuguese language to designate male persons collectively as well as persons of both sexes collectively, act as de facto discrimination against women, despite the fact that the Federal Constitution explicitly establishes the beneficiaries as "men" and "women". (Article 189)

While acknowledging that the statistics on female beneficiaries of the agrarian reform in the 1996 Census were disappointing, it is apparent that a process - however slow - is underway for recognizing women's rights to land. This recognition has been expressed in the pronouncements of the MDA and INCRA, and the above-mentioned project for the Integration of the Gender Perspective in the Sector of Agrarian Reform, supported by FAO, is an unequivocal manifestation of this concern. The initiative fits into the context of the FAO Plan of Action for the integration of women in development, which restates the need to integrate gender in the policies and programmes of agrarian reform, and eliminate legal barriers in the way of women accessing productive resources.

Likewise, agrarian law has been evolving away from the exclusion of women's rights and towards their recognition and protection. To illustrate this point, we only need to look at the Estatuto, which denoted men "heads of household" as entitled to these rights and agrarian policies in the following terms:

"The opportunity of access to land ownership is guaranteed to all (masculine plural), according to their social function, as provided for by this Law". (Article 2)

The Estatuto established the following order of preference for those who were to benefit from the agrarian reform:

"I - the owner of the expropriated land, as long as it is being cultivated by him directly, or by members of his family; II - those who work on the expropriated land as owners, wage-earners, share-croppers or lessees; III - farmers whose property does not reach the size of a family property in the region; IV - farmers whose property is proven to be insufficient for their own or their family's sustenance; V - those who are technically qualified in the laws currently in force, or who have proven skills in agricultural activities. §1 In the order of preferences... priority will be given to heads of large families whose members wish to exercise agricultural activities in the area that is to be distributed. §2 Only landless workers will be able to purchase the lots, save exceptions provided by this Law. §3 Rural land owners will not be eligible to benefit from the land distribution this article refers to, except in the cases mentioned in paragraphs I, III and IV, nor will whoever is employed in public function, private enterprise or semi-official state enterprise, or has a para-fiscal role". (Article 25)

In short, the Estatuto referred to a male subject, man, emphasized by its reference to "heads of household" which at the time - in conformity with the Civil Code - were fathers or husbands. When it used expressions such as "todos" (all) and "trabalhadores" (workers), this did not refer to a generic plural but to a masculine plural according to the logic of the Civil Code, reaffirming the subordination of women.

The Federal Constitution of 1988 eliminated discrimination against those family structures that had not been provided for by the Civil Code and put an end to male leadership (household headship) in the running of families. In the formal sense, these innovations had repercussions on all laws that came under the Constitution, including the rules for land access. In accordance with the Federal Constitution, INCRA established the right for men and women to benefit equally from agrarian reform, although in practice preference continued to be given to families with male headship and to applicants with experience, criteria that work against women's equal participation. Decree No.3509 of 2000, which approved INCRA's new structure, defined a new management model, as follows:

"[its] basic principle is the introduction of a new management paradigm in INCRA, aimed at results and focused on clients/citizens. The driving vision of the future in this principle is the formation of an efficient, effective, flexible, transparent, highly qualified and professional public service". (INCRA 2000)

In formal legal terms, women have the full range of rights attendant on participating in agrarian reform programmes, including access to land, training and other resources necessary to a rural productive citizen of either sex. The social effectiveness of the norms that guarantee these rights are another matter. In other words, the gap between possessing these rights and exercising them is the great leap that rural women must make. In a parallel process, the masculine grammar and agrarian reform modelled on male family headship contained in INCRA's proposal to focus its management on the clients'/citizens' perspective, needs to be relinquished. It needs to be replaced by a perspective that recognizes women/women clients/women citizens as heads of households on an equal basis with men, in accordance with the 1988 Federal Constitution.

Obstacles faced by rural women in claiming their rights

According to data collected in 1997, 20.1 percent of the economically active female population is employed in agricultural tasks, the second-most common branch of female economic activity. About 81 percent of the women involved in agricultural tasks receive no payment of any kind for their work, in contrast with the 26.3 percent of men in a similar situation^[18]. (IBASE 2000)

There is now an increased awareness of rights and women are demanding de facto recognition of these rights, including access to land ownership, registration as rural producers by state, municipal and federal bodies, and other rights such as access to credit. This new awareness and willingness to take action has come about through the publicizing of constitutional norms and the recommendations of international conferences, done on the almost exclusive initiative of women's associations within trade unions, unions of rural workers and producers, and the like.

Public officials responsible for the formulation and implementation of land and agricultural policies need an understanding of the obstacles to women's land tenure in order to act appropriately to eliminate these obstacles. Officials need to be trained and governmental organizations, unions and enterprises need to be meticulous in adhering to men and women's rights. The training must be appropriate and accessible to women, and must take into account the need to modify practices and customs that are discriminatory. It is essential that the rural women who have struggled for years for access to land are included in the planning and execution of these policies if they are to be at all effective.

Access to land

The mere existence of laws does not necessarily change social practices and customs. One cannot, however, dismiss the impact of legislative reform in Brazil since the 1988 Constitution, which has eliminated much discrimination based on gender. Access to land can take place in any of the following ways:

• purchase

• donation

• possession

• succession due to death

• succession inter vivos in the case of marital separation

• usucapio

• adjudication through agrarian reform

In none of these cases are there restrictions, in theory, against women accessing land. However, taking the available statistical data at face value, men are highly represented among rural producers. The way in which data are collected, based on a methodology that seeks to identify only heads of household - that is, men - without counting women, could well account for this.

There are general impediments to land access, (Abramovay and Ruas 2000: 40)^[19] but the absence of a gender perspective is notable in public policies designed to enable access to land, as is the lack of information made available by official bodies about women's constitutional rights, and commitments Brazil has made concerning them at the latest international conferences. The texts of the 1975 Convention on the elimination of all forms of discrimination against women are poorly publicized by official bodies, an omission greatly amplified by the strength of local customs influencing rural workers as well as the workings of governmental institutions.

Women are up against other cultural obstacles: in the way that administrative rules on agrarian reform are set, in the attitudes and practices of the officials in charge of applying these rules, and in the selection process for possible beneficiaries. The INCRA survey qualification criteria constitute the first difficulties that women encounter in gaining access to land. Statistics reveal that most of those surveyed and listed are men, which indicates the scope of the difficulties that women face. A large majority of women, married or single, feature in the survey as dependants of the person listed. In general, only widows, separated women or older women can have any hope of being listed in their own name and not as dependants. The person listed in the survey has the option of requesting the inclusion of his or her partner, although there is no legal requirement to do so. This represents progress with regard to the previous ruling, which included only men in the survey.

In the whole body of law regarding land policies, there is hardly a mention of gender. Where it appears, it is presented in a rather generic way and is not accompanied by resources for applying any specific programme.

The attitudes and practices that obstruct women attempting to exercise their right to access land cannot be attributed solely to government officials. In addition to the supposedly neutral and egalitarian legal criteria, the selection process of women beneficiaries has a subjective phase, again based on apparently democratic practices. A commission, made up of representatives of government and rural workers' movements, select from among the candidates who have managed to satisfy the legal/bureaucratic requirements those who will go on to benefit from the agrarian reform project. In spite of democratic representation in the State and Social Movement Selection Commission, the very low incidence of women as beneficiaries indicates that there is exclusion - through legal criteria and in the mixed commission's selection process. Studying the organization of rural families themselves may shed light on the ways in which rigid definitions of male and female roles, and patterns of male predominance and authority in these households, give rise to the conservative outcomes of these selection processes.

It is hoped that with Resolution No.6 of 2001, the MDA will include a gender perspective in its administrative instruments, and automatically insert women workers' names in the Nota del Productor Rural so as to establish the rights of men and women, married or in de facto union, in a straightforward way rather than having to resorting to the prior consultation of one of the parties.

Access to credit

According to the Federal Constitution, "Decision making in policies of credit, exchange, insurance and the transfer of assets is the prerogative of the Union." (Article 22, Heading VII) This does not prevent state governments from establishing their own lines of credit, nor the formation of credit cooperatives, so long as they do not disobey the Central Bank's guidelines. The Constitution does not discriminate between men and women in access to credit. It states that the law will establish directives and lay the foundations for balanced national development, and that agricultural policy must take into account credit and fiscal instruments. (Articles 174 and 187) This could be read as an opportunity for "balanced development" to be defined in terms of a land and agricultural policy designed to eliminate social and regional - as well as racial and sexual - discrimination.

Historically, agricultural credit benefited major landowners, while managing not to advance goals such as increased food production, the elimination of social and regional deprivation, or satisfying rural workers' demands for land and helping to halt precipitate rural-urban migration.

The Banca da Terra (Land Bank) is an important state-funding programme created under Ley Complementaria (Complementary Law) No.93/98. Its purpose is to enable smallholders to overcome difficulties they encounter in accessing credit. Its regulatory decree defines - using the generic masculine plural - who can benefit from the funding it offers. Landless rural workers: preferably paid workers, share-croppers, smallholders and lessees who can demonstrate at least five years' experience in rural activities; and farmer-owners of lands that are proven to be incapable of generating an income sufficient for their own sustenance or that of their families are specified. (Article 5) Another requirement more likely to be complied with by male rural workers than by women rural workers is the proof of five year's farming experience by means of registers and employment records, and declarations from farming cooperatives, associations or rural workers' unions.

In view of men's greater possibilities in accessing credit, women, as wives, are prevented from exercising their right to this benefit, and their signatures are not even deemed necessary when their husbands or partners take on a commitment for credit. Without a clearly defined policy aimed at broadening women's access to land and credit, the benefits of the Banca da Terra will be restricted to men, once again excluding women.

Easier access to credit for men also stems from the surveying process already discussed, which again privileges men. As the official beneficiaries of land under agrarian reform, it is men who receive loans for the management of the land, and men who commit themselves to paying off the loans. Under Brazilian civil law, married men and women need their partners' agreement in order to access credit. This requirement is dispensed with in the case of rural credit, even though the benefits and obligations that derive from this credit are linked to the plot of land and not solely to the person settled on it.

Local experience shows that it is possible to gear credit programmes to poor farmers by giving priority to the most excluded, in this case women. If such schemes were championed by the Foro Nacional de Segretarios de Agricultura (National Forum of Agriculture Secretaries) and joint enterprises between INCRA and state governments, the model could spread and take root in social practice, just as CONTAG and MST have developed strategies to influence government credit programmes. (Couto 1998)

Men and women have to meet the same legal requirements in order to access credit. Although international conferences on Population and Development, and the Fourth International Conference on Women, have made recommendations about the need to support rural women in accessing credit, the absence of a gender perspective in public policies has prevented the creation of mechanisms to achieve this objective.

In addition to having to steer a path through intricate and antiquated bureaucratic processes of which they have no experience, women must grapple with financial agents who, in turn, do not know how to deal with them. Many continue to consider men as sole heads of household and landowners. Furthermore, women's lack of training in financial planning, resource management and marketing, among other things, combined with external discriminatory mechanisms (even within the family unit) constitute other obstacles to be overcome in the context of a policy that effectively aims to empower rural woman.

There are isolated cases of women obtaining credit, from small municipalities, state banks or cooperatives, which should be taken into account by women's organizations, the financial system and the officials of rural credit organizations. There is a need to train financial agents, at all levels of management and operations, so that they recognize women's rights to credit and may work to overcome the obstacles women face in applying for credit^[20].

A cultural factor impeding women's access to rural credit that should not be overlooked is women's reluctance to envisage having credit as an option. Yet studies carried out by FAO (1995) in several countries, including Brazil, indicate that loans granted to women have a high rate of recovery.

Access to technical assistance and training

The Federal Constitution provides for the planning and implementation of an agrarian policy of rural technical assistance and extension. (Article 187, IV) The Act of Transitional Constitutional Provisions likewise foresees the creation of SENAR (a National Rural Apprenticeship Service) which is to function without jeopardizing other public bodies operating in this area. (Article 62)

It has been observed that rural training and extension programmes tend to reinforce women's traditional roles, involving activities that constitute an extension of the domestic environment without recognizing its productive activities or the need for professional training. Many training programmes, whether government-run or provided by rural unions and cooperatives, offer courses in dressmaking, sewing and cooking and in other skills considered to be of feminine interest. They tend not to offer women the new skills they need to maintain their activities as rural producers, and do not take into account the diversity and breadth of the productive activities in which women are involved.

There are no data measuring women's access to technologies that facilitate their work, improve their productivity and leave them with time to pursue community activities.

Women's participation in organizations and decision-making

Even in countries where education indicators are higher for women than for men, as in Brazil, Costa Rica, Panama and Uruguay, female participation in production organizations at the managerial level fails to reflect this positive situation. (FAO 1993: 61) The investigation carried out by FLASCO (Social Science Faculty of Latin America) in 1991 uncovered an absence or low representation of women not only in state bodies but in civil institutions such as the OAB (Order of Brazilian Lawyers) and ABI (the Association of Brazilian Industry).

Various studies undertaken to examine participation in unions and political parties recommend introducing a quotas policy - a great novelty in the last two decades - to facilitate women's participation. (Delgado 1997, Neves 1995, among others) At the beginning of the 1990s, the CUT decided to set female representation in its decisionmaking framework at a 30 percent minimum. This was designed to set an example for unions and affiliates to proceed in the same way, whether in urban or rural areas. Representation of women in union management posts is rather small, especially in rural areas, and women have begun to press for more of a presence at the managerial level in trade unions, rural movements such as MST, and in settlers' and small farmers' groups. By 1995 even the National Congress had approved norms requiring political parties to include in their party presentation quotas at least 30 percent of women candidates.

Rural women's participation within movements and unions has expanded throughout the country. Various meetings and seminars are promoted through their own publications, which circulate through trade union networks, union syndicates and the autonomous women's movement. A stimulating exchange between rural and urban women is underway, supported by non-governmental and local governmental organizations including the state and municipal Councils for the Condition of Women. There has been a significant increase in female union membership, now comprising more than two million women in rural areas. (FAO 1994)

Customary law and cultural impediments to gender equality

The fact that the large majority of women rural workers are unpaid prevents them from having access to the legal provisions that protect them. In Brazil, as in almost all countries in the region, there is much ignorance of the rights acclaimed in the legal regulations. This lack of knowledge about, for example, the benefits of the agrarian reform implies the exclusion of women. The customary norms that discriminate against women for the most part reflect values expressed in Brazilian law prior to the Federal Constitution of 1988. In rural areas, the customary norms and the ideology that inspired the Civil Code appear to have a very strong influence on the organization of families and on other spheres of social life. The power of the husband, as head of the family and head of the household, is a feature in the opinions of rural men and women and of the officials that operate alongside these men and women workers. The long validity of a law legitimizing men's hierarchical relations over women profoundly marked the thinking and behaviour of individuals in Brazilian society. This hierarchy can be found operating against women in everyday practice and in legal decisions. It follows a customary law inspired by social norms and a hierarchical interpretation of the law that confers 'natural' legitimacy on systems of inheritance and right of access to land.

Women's movements, including trade unions and women workers' unions, consider that the tradition of gender hierarchy has prevailed too long in society. (Moura 1978, Carneiro 1996) The weight of customary law - derived from cultural norms, from the discriminatory interpretation of state laws after 1988, or from the application of laws prior to 1988 - is to be considered as an impediment to be neutralized or eliminated by government institutions promoting agrarian reform.

The ability to exercise rights is, among other things, dependent on there being a correspondence between formal/legal rights proclaimed by the state and social customs, values and behaviour. The agrarian reform process, which by means of the settlement policy signals the dilution of land ownership, should also incorporate the dilution of male power and the inclusion of women.

Legislative proposals and legal strategies for effecting change

In the analysis of Brazilian law in general, and of agrarian law in particular, it emerges that until 1988 legislation tended to oscillate between a discriminatory rhetoric against women and a neutral, asexual rhetoric. Since 1988, Brazilian legislation has been characterized by an asexual/neutral discourse or an egalitarian rhetoric. The invisibility of women as individuals entitled to rights is maintained within this neutral/asexual rhetoric, allowing discriminatory practices to proliferate against women.

In devising specific proposals for legislative reform, there is a particular need to focus on the status of rural women who, far more than urban women, must face the force of discriminatory customs. Proposals to change the norms of agrarian law must be placed in a systemic legal context. It is fundamental that the same legal paradigm operate throughout the legal system and in all areas of the law, including laws of institutional practices and judicial decisions. In Brazil this effort has not yet been made. Neither the Civil Code nor the Penal Code have been reformed since the 1988 Constitution was brought in, although reform bills are currently before the National Congress.

Legal changes must match public policies to make egalitarian law effective. Policies to this end should include the general dissemination of the law and its interpretation, with formal and informal educational processes targeting men and women rural workers and officials in charge of the agrarian reform programmes. Mechanisms to monitor and control the law's application should be put in place, underpinned by studies and surveys to confirm the effectiveness of the legislation.

In view of the fact that practices are changing without a corresponding shedding of the mentality of discrimination against women, agrarian reform plans should at least include a series of proposals for the future orientation of women's empowerment. It is necessary to state these proposals explicitly, in order to ensure that development practitioners, planners and policy makers on rural women's rights continue to be made aware of where gaps exist between theoretical rights and the ability to exercise them. It is in the spirit of facilitating the integration of rural women as beneficiaries of agrarian reform that the following legislative and institutional proposals are put forward.

Legislative proposals

1. Revise the Estatuto da Terra and later laws to include the explicit word forms "women and men" in place of the generic masculine plural, and include both masculine and feminine forms in the definition of male and female beneficiaries of the agrarian reform. Eliminate forms of words that assume heads of families are male, impeding women's rights to land as well as access to credit, training and political representation;

2. Eliminate laws which, although neutral in character, may act as obstacles to women, and for instance impede their access to credit;

3. Make it compulsory to name husbands and wives, as well as male and female partners in a stable union, as beneficiaries in land reform surveys for land tenure - as already happens in various countries of the region;

4. Simplify bureaucratic requirements, particularly those that are most difficult for women to meet, in conformity with Article 4 of the Convention for the elimination of all forms of discrimination against women;

5. Assess the feasibility of codifying agrarian laws in a single legal body organized around the promotion of gender equity;

6. Revise the documents formulated by MDA/INCRA, with a view to identifying and eliminating concepts that may reinforce discrimination.

Institutional proposals

1. Broaden dialogue with women who operate within women rural workers' movements, seeking to understand and set up guidelines for meeting their demands. Encourage social and state institutions to take the demands of the March of the Margaridas into consideration;

2. Broaden dialogue with women rural workers in the INCRA settlements, seeking to understand their real situation, their difficulties and their suggestions for enabling access to the benefits of agrarian reform;

3. Produce educational materials to disseminate and explain the rights men and women can claim under agrarian reform;

4. Train state officials in applying the law and monitoring the effectiveness of its application;

5. Carry out surveys, and quantitative and qualitative investigations, to reveal the real status of rural women - focusing on the amount they benefit from agrarian reform, their effective input in the development of settlements, and the impediments they face in exercising their entitlement to rights in the agrarian reform process.

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UNDP/UN. 1995. Human Development Report. México.

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Appendix 1. Abbreviations

Appendix 2. National and international legislation consulted

Appendix 3. Glossary

Adjudication of land. Administrative act, which transfers the ownership of land to the beneficiaries of land reform projects.

Alimony. Monies paid by older or younger relatives, as well as by spouses, to those who have the right or need for maintenance. It includes food as such, as well as the necessary living resources or other fundamental necessities for subsistence.

Civil capacity. The legal ability to exercise rights and take on obligations.

Conflict of laws. Situation in which more than one law regulates or disciplines a single issue with different orientations.

Custom. Unwritten norm which, nonetheless, prevails over social practices and values.

Curatorship. Situation in which persons who have reached majority are prevented from exercising directly and fully their rights and obligations, due to the limitation of their legal capacity. In this case, a guardian or trustee is appointed to represent them and administer their assets.

De facto union. Voluntary union of persons, which carries rights and obligations.

Inheritance laws. Set of laws that regulate the transfer of inherited assets from one person to another in the case of death.

International agreement. A form of international convention between nations that creates obligations between the signatory states. In Brazil, after ratification by the National Congress, international pacts have the force of internal laws.

International convention. Agreement between nations concerning a specific theme, giving rise to common obligations. After ratification by the national legal structure, it has the force of an internal law.

International declaration. Agreement between countries on a given theme or the recognition of a set of rights that are common to the countries that sign the declaration. According to a traditional view it was considered that international declarations, unlike Treaties, Conventions and Agreements, do not have the force of internal national laws. The modern interpretation accepts that the rights recognized by the declarations have internal validity.

Law. Set of rules of conduct promulgated by the state. In a broader sense, the law of a country is made up of the whole set of laws, jurisprudence, legal doctrine and legal institutions.

Agrarian law. Body of legal norms, doctrines, case law and institutions concerning the regulation of relationships of possession, ownership and use of land and of the contractual relations whose object is agricultural activity.

Civil law. Branch of private law that regulates relations between individuals, including those related to goods, assets, the family, obligations and contracts, property and succession.

Customary law. Unwritten law that nonetheless regulates practices and influences societal values.

Family law. Set of norms that regulate relations between spouses and between parents and children.

Labour law. Set of norms that regulate wage relations, defining the reciprocal rights and obligations of employers and employees, as well as the state's relationship with them.

Natural law. Law not promulgated by the state but which, nevertheless, precedes it in the form of major guiding principles, including the values of ethics and justice.

Objective law. Is law established by the state through its legislation.

Penal law. Set of norms that define crimes and punishments.

Private law. Set of norms that regulate relations between individuals, defining their reciprocal rights and obligations. Civil law is a branch of private law.

Public law. Set of norms in which the state's interest in relations with other states or private entities predominates. Administrative law, constitutional law and penal law are examples of public law.

Subjective law. Is the right of the individual to bring to bear the law promulgated by the state, including by means of judicial action.

Legal capacity. The capacity of all persons to be entitled to rights and obligations, so long as they comply with the requirements of the law.

Marital authority. Power or authority granted to the husband as head of the marital unit. In Brazil, the authority of the head of household is shared by the wife.

Marital consent. Consent of the husband, required by law for acts undertaken by the wife.

Nota del Productor Rural (Rural Producer's Record). A form of official record where products to be or having been marketed are enumerated.

Patria potestas (Parental authority). Body of rights and duties that the law assigns to the father or to the mother over the property and person of the minor.

Plan of Action. International document, generally the fruit of conferences, signed by states on specific issues, defining obligations to overcome problems. Unlike conventions, treaties and agreements, plans of action do not have the force of internal law but consist of the guiding principles of the law of the countries that signed it.

Possession. Right over or holding of something, of land, independently of the title of property. Possession can be legitimate or not, according to the requirements of the law.

Property regime. Legal principles that regulate economic relations between spouses.

Reservations. Non-adherence by the state to certain clauses of international conventions, treaties or agreements, while accepting the set of provisions of these legal instruments.

Stable union. Voluntary union between a man and a woman to form a family unit or to cohabit, without the need to register the fact with the state authority.

Succession inter vivos. Transfer or division of assets between living persons. This occurs, for example, when spouses separate.

Treaty. A form of convention between nations defining rights and obligations. In Brazil, since the ratification of the National Congress, treaties have the force of internal law.

Tutelage. Situation in which under-age children, without parental authority (patria potestas), are legally placed under the protection of a tutor appointed by the court.

Unoccupied land. Land that is the property of the state.

Usucapio. Manner of acquiring property after a long period of possession that is not contested within the terms established by law.

Uxorian consent. Consent of the wife, required by law for acts undertaken by the husband.