Concern over women's subordination in law is not new. Beginning in the nineteenth century and continuing throughout the twentieth, the world has been witness to innumerable women's movements seeking to pressure governments and societies to recognize not only women's civil rights but that women should enjoy equal working conditions and wages with men.
However, it was not until feminist movements gained recognition in the 'seventies and the United Nations' Women's Decade achieved significant advances, that it became possible to conduct a series of studies on rural Latin-American women. These studies show clearly and conclusively that women's contribution to the development process is much greater than previously assumed, and that women suffer from problems stemming from the traditional gender-based division of labour, which sees them exclusively taken up with their reproductive role as mother and homemaker.
It was shown that the gender division of labour, not only determines rural women's workload, but influences as well the way their productive work is perceived, with the result that, on grounds of gender alone, their form of participation in society is different from that of men.
This, in turn, has given rise to a number of customary and statutory rules that sanction the status quo and constitute a real obstacle to change.
In Latin America this problem dates back to colonial times, when new laws and regulations were imposed by Spanish and Portuguese colonizers. In fact, with few exceptions, customary law*1 virtually disappeared from the continent, as people were divested of their indigenous culture in the wake of the conquest.
(1 Some words appear followed by an asterisk. This indicates that their meaning is given in the Glossary of Legal Terms found in Annex II.)
Most of the new laws promulgated in the colonized territories were the expression of the Spanish and Portuguese visions of the world, and failed to provide for the real context of native peoples. However, while Spanish Law of the Indies consisted of a huge body of legislation intended to apply to the conquered people, the same cannot be said of Portuguese Law. Unfortunately, systematic non-observance made the Laws of the Indies largely inoperative.
The shortcomings of and non-compliance with more equitable statute law*, in some cases led to the emergence of de facto rules, but did not give rise to any new system of customary law. The rules were merely the expression of isolated preconceptions, which, in the specific case of rural women, resulted in the manifestation of male-biased attitudes which further degraded women's legal status vis-à-vis men of the same class and ethnic group. As a consequence of this, there are certain shortcomings in Latin-American legislation that are not covered by custom*, the statute being the sole overriding principle. One example of this is the legislation governing conjugal property and inheritance by the spouse or companion - a matter of great economic importance for the woman.
This is one area where Latin America differs fundamentally from the African countries whose customary law covers the shortcomings of statute law at the rural level through a system of rights, obligations and penalties, established by the traditional authorities who abide by a series of rules when it comes to passing judgement. This is also probably why Latin-Americans essentially look to statutory rules and why these are so important in the rural sector.
FAO's Regional Office for Latin America and the Caribbean was fully aware of this situation and, in a pioneer effort, between 1987 and 1990 sponsored a series of case studies on the legal status of rural women in Latin America and the Caribbean by the following consultants: Soledad Alvear (Chile, Guatemala, Peru, Dominican Republic and Colombia), Emma Castro de Pinzón (El Salvador), Támara Columbié (Cuba), Martha Torres Falcon (Mexico) and Gladys Yrureta (Venezuela). Also, as part of a Technical Cooperation Project in the English-speaking Caribbean in 1988, Norma M. Forde prepared a paper containing data on Barbados, Belize and Saint Lucia, which was included in FAO's Regional Office publication "The Caribbean Woman in Agriculture".
A Regional Round Table on "Legal Mechanisms to facilitate Rural Women's Participation in Rural Development", also took place in 1990. Its discussion paper, based on a review of the case studies, pinpointed de jure and de facto areas where the main discriminations against rural women lay.
The Round Table was attended by experts from 17 Latin-American and Caribbean countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela.
The discussions and conclusions on that occasion ² were indeed able to pinpoint where the discriminatory rules lay, and showed how the rural woman's legal status differed from country to country and why women were unable to play their part fully in what was an economically and socially inequitable society.
(2 FAO. 1990. Report of the Round Table on "Legal Mechanisms to facilitate Women's Participation in Rural Development". Santiago, Chile. FAO/RLAC.54 p. (DERU-36).)
It was shown, for instance, that one cause of the legal discrimination of which rural women are the victims is the traditional division of labour between the sexes, the ideological conception of which underpins the "values" that are expressed in both customary and statute law.
Under this division of labour the woman was responsible for the private or reproductive sphere, closely associated with domestic work and caring, for which she received no economic remuneration whatever. This influenced custom and law in the following ways: (1) The woman's main responsibilities were in the private, not the public, sphere. Thus, she could work outside the home only when there was no man available to do that work and provided she did not neglect her assigned tasks. This gave rise to the idea of women's work being of secondary importance and to their doubly long working day; (2) since the woman did not receive payment for her work in the reproductive sphere, she was not recognized as a producer - for either the community or herself; (3) in practice, what emerged was a hierarchical power structure in the home, the labour market and the area of production - traditionally the man's domain; and (4) the de jure and de facto basis ³ for the subordination of woman is to be found in the areas of civil, labour and agrarian legislation relating directly or indirectly to her reproductive role.
(3 FAO. 1990. Report of the Round Table on "Legal Mechanisms to facilitate Women's Participation in Rural Development". Santiago, Chile. FAO/RLAC. 54 p (DERU-36).)
From a review of the nine case studies and the country contributions to the Regional Round Table "Legal Mechanisms to facilitate Women's Participation in Rural Development" on the four points above, it emerges that:
- Civil law in several Latin-American and Caribbean countries' legally institute Marital Authority (potestad marital)*, the principle underlying women's subordination, whereby the husband exercises authority over his wife's person and property* and is granted special privileges, which are specifically defined in law. De facto marital jurisdiction of this kind is traditionally widely observed in the countryside throughout the region - a practice that often hinders the enforcement of non-discriminatory legislation.
- In the area of labour legislation, the measures barring women from certain types of work do not carry conviction that they are really based on the wish to provide for their physical protection; they are probably a response to the needs of the labour market. The failure to amend these prohibitive measures corroborates one's conviction on this point.
- As regards the legislation on maternity-related matters, it is generally accepted in most of these countries that responsibility for the maternal function rests with the woman. This has led to legislation granting the working mother certain privileges. These privileges, however, are not looked upon as a duty of society, but as a gracious concession to the woman. In point of fact, this type of legislation opens the way to illegal expedients whereby employers may be exempt from what they consider as the "burden of maternity''.
- Many countries, however, have had the political will to change this state of affairs. Unfortunately, measures to protect working mothers have not been extended to rural women, except in Cuba and, more recently, Colombia, where the Instituto de Bienestar Familiar (Family Welfare Institute) is setting up a system of rural nurseries using the "substitute home" formula.
- As regards salaries, the supposed inferiority of women's work finds expression, for instance, in the low wages paid temporary workers, most of whom are women. The fact that women are treated as adult minors* is another source of injustice; and the already widespread and growing practice of informal hiring for women leaves many of their number without legal protection and further aggravates their already disadvantaged situation.
- The problems arising from the gaps in agrarian legislation (a fairly new field, not equally well-developed in all the countries) and the way they are filled in, have seriously damaged the rural women's economic situation. In accordance with the rules of legal interpretation, the gaps in agrarian law are usually remedied by recourse to the Civil Code, which, as the most traditional expression of Law, is often discriminatory to rural women. For instance, the Civil Codes of several countries consider the man as the head of household, an additional obstacle to rural women's gaining equal access to land. A similar problem arises whenever the Civil Code is appealed to in cases of succession to land allocated under the agrarian laws.
- Extralegal practices in the area of agrarian, labour and civil legislation further aggravate rural women's situation. Failure to bring the law in these three sectors into line with the real situations of rural women has made the law itself unenforceable. Discriminatory customs tend to replace unbiased and sound laws if these are unaccompanied by appropriate enforcement regulations. Justice is thus at the mercy of the prejudices of those whose task is to apply the law - or of the women themselves, who are either unaware of their rights or else do not dare to claim them. In many countries the authorities responsible for allocating land under the agrarian laws refuse to recognize women as heads of household even when the law does.
- One's supposition that discriminatory rules stemmed from women's reproductive role is confirmed. Indeed, in both enactments and custom, these rules concern the various branches of the law having to do with that role and with the power structure stemming from the gender-based division of labour.
- The above examples highlight the need for special legislation for rural women that takes account of their situation with respect to both their productive and their reproductive role. Neutral legislation is often a source of injustice given that the situations of rural men and rural women are different.
It must also be stressed that any legislation intended to improve women's status should take a global approach to the problem in all legal spheres, thus avoiding the inconsistencies and conflict of law rules that may be observed in various countries and are dealt with in this book.
Some Notes on Methodology
A number of difficulties were encountered in the preparation of the present study. The first was the shortage of gender-disaggregated data to give a clearer picture of rural women's status and show how it is affected by both formal and the de facto rules.
Although the nine case studies in the background and country papers submitted to the Regional Round Table "Legal Mechanisms to facilitate Rural Women's Participation in Rural Development" provided further insight into the legal status of the region's rural women, some very important questions remain unanswered. For instance, which legal rules in each country have contributed most effectively to improving rural women's status, how many rural women have benefited, and to which socioeconomic groups do they belong?
As to the effectiveness of the laws benefiting rural women, again it was not possible to obtain statistical data on the number of rural women having recourse to the courts to claim their rights or the number of rulings in their favour. Also to be noted are the breadth of the subject and the number of countries involved (nineteen), each with a different historical background and using a different legal language.
A study on rural women's legal status needs to be based on a review of the rural woman's situation in general if it is to be of real use in bringing about concrete economic and social changes. Thus it was necessary to consult an extensive bibliography in order to have both a general picture of the situation and a compartmentalized view of constitutional, civil, labour and agrarian legislation.
Significantly, since agrarian law is a fairly new area, the data from the basic documents and from the additional literature consulted were incomplete. Available statistics are sketchy, and often there is no cross-referencing, making it difficult to formulate any useful conclusions. There is clearly a far greater need for statute law and for the relevant enforcement regulations in the agrarian than in other branches of the law. It would therefore be useful to continue and expand this study so as to gather more information and more accurately define the options for legal mechanisms or policies needed in order to change the very precarious situation of poor rural women in Latin America.