I. The subordination of rural women in law in Latin America: Introduction
1. Rural women's subordination in law: The historical background
Bearing in mind that society is a dynamic, ever-changing entity with new, sometimes conflict-spawned social structures and institutions, it is important to take history into account in any review of the legal subordination of rural women in Latin America. This approach will reveal not only the political changes inherent in the demands of this marginalized sector for participation, but also the ways in which these changes have affected women in general and rural women in particular.
The conquest, one of the most significant historical events in Latin America, abruptly arrested the social development of the continent's indigenous peoples and partially if not entirely destroyed their culture, including the rules of traditional law. As a result, customary law vanished from vast areas, surviving, in a somewhat reduced form, only in relatively isolated regions.
The arrival of the Spaniards signified a radical change for the women partners in indigenous marriages, which were polygamous or monogamous depending on the region and its level of prosperity. In times of plenty, but when there was a shortage of young men, polygamy (with one wife the favourite) was the norm, while in harder times, monogamy predominated. The Church and the Spanish laws abolished polygamy, leaving numerous women unprotected.4 The conquistadors, on the other hand, took native women as concubines, with or without their consent, in breach of the rules established by the Church and by the Spanish and Portuguese Crowns.
(4 RAMOS ESCANDON, M. 1988. Mujer y sociedad novohispana. In ISIS. Nuestra memoria, nuestro futuro: mujeres e historia. America Latina y el Caribe. Santiago de Chile, Andromeda pp.21-33. (Ediciones de las Mujeres N°10).)
The new forms of social organization gave rise to new family structures and new ethnic groups, each with its own special features and place in a highly stratified society. The women bore the brunt of the convergence of two these worlds, each with its own culture and political and economic systems.
The Spanish and Portuguese colonial venture was particularly hard on the indigenous woman in terms of labour5. Even though the provisions of the Spanish Indian Legislation sought to protect the Indian woman, she was subjected to a strict, cruel labour regime sadly like serfdom.
(5 PEREZ SAN VINCENTE, G. 1984. A mulher e sue atuaçao durante os primeros cinquenta anos de vida novohispánica. In CEHILA. A mulher pobre na historia da igreja latinoamericana. Sao Paolo, Ed. Paulinas. pp.138-151.)
All this shows that the personal and work relations of Indian women to the conquistadors and male settlers was one of subservience - a situation that was to have a significant impact on relations between men and women and between women and society.
At the time of the conquest, collective land ownership (working the land for the benefit of the community) was the system used by the Indians.6 For them, the most important relationship was with the land, followed by consanguinity. Then came the settlers with their own forms of economic organization. Colonial policy toward the rural community was largely geared to the expansion of the capitalist economy. The control of physical space was particularly important, and could only be achieved if the indigenous communities were culturally and physically dismembered.
(6 SANCHEZ, L.A. 1972. Historia general de America. Santiago de Chile, Ed. Ercilla. 3 v.)
The Spanish king authorized the conquistadors to divide land on the strength of Crown decrees, mercedes (grace and favour dispositions), etc., as a reward for their exploits. This later gave rise to the encomienda system7 which, despite its paternalistic objective, in practice became an efficient tool for appropriating land and even destroying the crops that grew there.
(7 The encomienda was a institution in Spanish law whereby groups of Indians were assigned to conquistadors, who were supposed to protect and educate them.)
The legal situation of the Indians living in the Portuguese colonies was even worse. The document establishing hereditary rights8 granted the settlers a number of privileges, the most important of which was the right to take Indians into bondage to serve in their homes or on their ships, and to send up to 39 of them per year tax-free to Lisbon as slaves.
(8 DE VARNHAGEN, F.A. 1952. Historia general do Brasil. Sao Paolo, Melhoramentos. 7a. ed. 2 v.)
In practice, sugar cane cultivation involved expelling the Indians and taking over their land, enslaving many of their number to plant the cane and work the sugar mills, and ghettoizing them for this purpose.9 The men did the agricultural work, while the women were servants in the homes of the Portuguese settlers. Both the men and the women were legally slaves, but the women also had to submit to the sexual whims of their masters.
(9 BEOZZO, J.O. 1952. A mulher indigene e a igreja na situaçao esclavista do Brasil colonial. In: CEHILA, Op. cit., pp.70-93. )
The laws of the Indies enacted by the Spanish Crown were not enforced, given the fact that their principal opponents were also in charge of enforcing them. In addition to the characteristic colonial disobedience of the law, usage had sanctioned the habit of paying lip service to provisions of the law considered unenforceable or counter-productive. The laws were acknowledged, but not given any practical application.10
(10 SANCHEZ, L.A. Op. cit. pp.361-380.)
There thus came into being a parallel system of rules that institutionalized a new social phenomenon in Latin America: a behavioural model based on total contempt for the native woman. There came a point where the encomienda holders and Portuguese settlers could exploit the women sexually with the tacit approval of society. With time, this practice took on the status of custom and later came to be considered one of the conquistadors' rights over the conquered peoples. This macho behaviour toward women represented a significant shift away from the paternalism embodied in the Spanish Laws of the Indies.11 This treatment of the native women continued during the Republican period under the ranchers and local leaders, who maintained this custom-hallowed ''parallel law".
(11SARA-LAFOSSE, V. 1988. Crisis familiar y social en el Peru. Lima, Ministry of Justice. 11 p. (Mimeo).)
The humiliating treatment of the Indians by the Spanish and Portuguese led to numerous indigenous uprisings throughout Latin America. Women's part in these has been little documented, but recent historical research suggests that they had an active role, either actually taking part in the action or supporting or accompanying their menfolk.12 It has proved impossible to learn just how many took part, but some particularly heroic deeds by indigenous women have been brought to light.
(12 DE SILKS, M.E. 1981. Bartolina Sisa, Gregoria Apaza. Dos heroínas indígenas. La Paz, Biblioteca Popular Ultima Hora. pp.4085.)
The late 18th and the 19th Centuries saw the Wars of Independence and the strengthening of republican legal systems in Latin America. The now independent States based their constitutions on those of the United States and France which, in theory, recognized equality for all.
Women, nevertheless, continued to be discriminated against in various areas of law: any declaration of equality was reversed by the paternalistic civil and labour legislation, based on the Code Napoleon, which considered women inferior, weak and in need of protection, and placed wives and mothers under their husbands' authority. The Republican Constitutions denied women the right to vote, while the Civil Codes prevented married women from disposing of their property, entering into work contracts without their husband's permission, or jointly exercising patria potestas over the children born of the marriage.
Whilst it is true that rural women did not suffer any further formal legal discrimination than that already described, they continued to be victimized by the parallel rules which were backed by custom and gave real effect to prejudices stemming from mistaken preconceptions rather than from judgements founded on women's actual ability.
It is important to specify that while rural women have certainly been the major victims of this juridical situation in Latin America, their social class, ethnic group and concept of authority have heavily influenced the extent to which they have been victimized. This is directly linked both to the existence of parallel norms, which lie outside the written law, and to the problem of the effectiveness of the law.
The now independent Latin-American republics inherited, to varying degrees, the subjugation of the judiciary to the political will of the governing classes. 13 This is why the courts regularly decided in favour of the latter, breeding distrust among the rural populations in general. The women were not unaffected by this distorted application of the law or the general mistrust of the judiciary, since they were also the victims of abusive practices and the denial of justice by men of their same class and ethnic group.
(13 REVILLA VERGARA, A.M. 1985. La problemática del fuero privativo agrario y su integración al fuero común. Lima, Universidad Católica. pp.130-169 (Degree thesis).)
Latin-American women's struggle for equal political and labour rights intensified in the late 19th century and has continued during the 20th. During the first half of the present century the countries gradually came to recognize political rights for women so that, today, one cannot imagine democratic movements without women participants, even though their practical gains bear little relation to the formal content of the written laws. The figures show that there is still much to be done before real political equality between men and women is achieved. Even now, Latin-American women are far from having half the seats in their parliaments or half their countries' decision-making responsibilities.
The fight for equal working conditions has not been as successful as the civil rights movements. While it is true that most Constitutions have abolished sexual discrimination in their eligibility requirements for the office of head of state or judge, the fact remains that "protectionist" measures limiting women's right to work persist. Again, women continue to be paid less than men for the same work. Latin-American labour laws include a long chapter on the treatment of women in their capacity as mothers yet, in practice, there is general acceptance of unfair customs which not only disregard the written law, but have established illegal formalities designed to allow employers to avoid contributing to the economic costs associated with the women's reproductive role. Because of this, women have come to look upon maternity with a feeling of guilt, because they associate it with job loss or social disapproval.
The active participation of rural women in civil rights and labour movements has not led to any real recognition of their capacity or any improvement in their status. The European settlers established predominantly masculine political relationships and leadership systems, still in operation today, which explain society's failure to acknowledge female leadership.
The 20th Century has also witnessed important peasant movements to gain access to land. The land tenure system (the big estates and the sharecropping arrangements - a colonial legacy that the advent of the republic has failed to do anything about), aggravated by the consolidation of the latifundio-minifundio structure and the existence of this type of land tenure side by side with a precarious feudal-type, farm labourer-based form of land holding (as had developed in the Peruvian sierra, or among the "huasipungos" in Ecuador), and an expanding landless peasant population, were the factors that unleashed nation-wide movements pressing for land. 14
(14 GARCIA,A. 1982. Modelos operacionales de Reforma Agraria y Desarrollo Rural en America Latina. San Jose de Costa Rica, IICA. p.196)
The intensity of these peasant struggles for land, dignity, work, culture and independence varied from country to country and with the historical context, but they all led to the enactment of agrarian legislation and, in many countries, to actual agrarian reform. In this way agrarian legislation assumed a new dimension, coupling land ownership with social usefulness through a system of limitations and obligations or through rights, and even penalizing inappropriate land use.
Although there is little documentation on the role of women in these peasant movements15, there are indications that women were energetic participants, sometimes playing a leading role (as in Chile and Peru) and sometimes an invisible, silent one.
(15 LEON DE LEAL, M. et al. 1987. Acceso de la mujer a la sierra en America Latina. Panorama general y estudios de caves en Honduras y Colombia. In: FAO. Mujeres Campesinas en America Latina: desarrollo rural. acceso a la sierra. migraciones. leqislaciones. Santiago de Chile, FAO/RLAC. pp. 1-81.)
All the same, poor rural women have not gained equal access to land. This is mainly due to cultural impediments, which have bred discriminatory laws designating males as heads of household; the one-sided interpretation of the law to the detriment of rural women; and the women's own preconceptions (which have prevented them from claiming their rights and obtaining other productive resources).
The peasant movements and the new agrarian legislation did, however, gradually make rural women aware of their rights, and of the need to be organized in order to claim them. According to Leal de Leon and her collaborators12, Latin America has in recent years seen a significant rise in the number of organized rural women seeking access to land. These authors cite organizations in Colombia, Cuba, Chile, Bolivia, Brazil, Honduras and Nicaragua as particularly active in the fight for the establishment and enforcement of unbiased agricultural legislation.
In recent years the advent of democratic governments has brought significant political changes in countries where military dictatorships had predominated since the 'seventies. This has led to greater freedom of expression and greater awareness of women's issues, and has inspired governments with the political will to make changes in women's favour. The democratic government of Chile is one of these, even though income differences between urban and rural workers and between men and women of the same class and ethnic group still persist. Bettering the living standards of rural women (who occupy the lowest rung of the rural poverty ladder) has been a slow and difficult process, as traditional social, legal and economic structures are still in place.
Latin-American development studies and policies have avoided coming to grips with the question of rural women's legal status. Governments have, with few exceptions, shown little willingness to improve rural women's official or actual legal status in any concrete way which would effectively enhance their economic and social condition and thus contribute to their countries' development as well.
(16 The term "sex" refers to the congenital and universal biological differences between men and women; "gender" relates to the socio-cultural and historical characteristics that determine how men and women interact and apportion their roles. These characteristics may change with time and do vary widely from culture to culture. However, gender is a social category which may be used to analyse the different roles, responsibilities, restrictions and opportunities that apply to men and to women in a given community, nation or culture.)
Rural women's legal subordination is part and parcel of women's overall position of subordination, stemming from the historical separation of human activity into two completely different, but closely interrelated, spheres. One sphere is about reproduction, the other about production. Included in the reproductive sphere are biological reproduction and related social activities - activities closely associated with domestic work, and belonging to the private domain, and are not quantified economically and have traditionally been assigned to women. Production comprises social and trade relations, falls within the public sphere, is quantified economically and is invariably a male responsibility. 17
(17 BAENA DE ESPARZA, R. 1982. Considerations sur la division sexuelle du travail. In: CENTRE HAITIEN D' INVESTIGATION EN SCIENCES SOCIALES (CHISS) ET UNIVERSITE D'ETAT D'HAITI (UEH). La femme rurale en Haïti et dans la Caribe. Traditions et innovations. Port-au-Prince. pp.205-225.)
This division of labour is strict to the point where, in every society, some activities and tasks are considered typically feminine (rearing the children and looking after the home, for instance) and others typically masculine (heading the household and providing for the family). Even so, the division is not equally strict for both spheres of activity. For instance, although the current economic crisis in the region has led to a greater female presence in the productive sector, it has not altered the woman's workload in the reproductive sphere (i.e. activities that are not quantified economically and are therefore unpaid and unprotected by the State).18
(18 LEON DE LEAL, M. 1982. Las trabajadoras del agro. Bogotá, ILET. 2 v. is a constant feature of the rural woman's situation throughout Latin America.)
This skewed rapport between men's and women's activities not only affects the woman's workload, increasing her working day two- or even three-fold, but also her remuneration, so that sex - a biological factor - becomes a social one with its own specific connotations in terms of values and standards, and its own ideological and economic consequences.
FIGURE 1 - TRADITIONAL MALE AND FEMALE SPHERES OF ACTIVITY AND HOW THEY INTERACT
HUMANS |
PRODUCTIVE SPHERE |
REPRODUCTIVE SPHERE |
oä |
ð |
|
o+ |
ï |
ï |
The above table 1 illustrates what has been said all along. Not only does the woman have a double workload because she is held solely responsible for the tasks inherent in her reproductive role, she is not paid for these tasks and is paid less than the man for her work in the productive sphere. This is constant feature of the rural woman's situation throught Latin America.
Again, the status of rural women varies depending on the position assigned to them in the different rural economies, which are neither homogenous nor static. Jobs range from agroindustrial enclaves to enterprises producing for the export market, to home market production, to sectors which have very little to do with the market, and to various combinations of these. Woman's position in the economic scheme determines both her workload in the productive sector and the onerous nature of her domestic work, which, in addition to care of her family, includes activities which only help to perpetuate the social status quo.
The maintaining and perpetuation of the status quo extend to such important questions as - the conscious or unconscious imparting of the rules of social relations, language, cultural standards and guidelines, and scales of values. All this is combined with and reinforced by the emotional bonds that are essential components of intimate primary relationships. The rural woman's role in perpetuating society and transmitting the ideology that subordinates her needs no emphasizing here. Paradoxically, then, the woman is both the victim and the victimizer of other women in that she passes on to her children and, through them, to society, a series of prejudices that keep women in a subordinate position.
This ideology of subordination goes counter to unbiased legislation (where such exists) and hinders its enforcement, either by engendering distorted preconceptions on which judges may base their decisions or preventing women from recognizing and claiming their rights. It is also a barrier to the legal reforms designed to amend discriminatory statute law and correct customary practices.
The Latin-American rural woman's activities, as briefly mentioned above, consist mainly of domestic work, which may be defined as "the universal role of the woman: time spent being productive at home and processing goods bought or exchanged in the market",19 - work, it should be recalled, that is unpaid.
(19 FAO. 1990. La situación de la mujer campesina frente a la legislation en nueve parses... Op. cit. p.5.)
Rural women's domestic work varies in form and scope depending on social class and the degree of development of the economy. Because survival is a major concern among the landless in peasant economies, women's domestic work includes collecting wood and fetching water, cultivating a home garden, managing and rearing animals, selling or exchanging their products in the market, and helping (without pay) their husbands in their work. Domestic working conditions improve, however, as the women move up the social ladder, so that in more developed economies, they participate on equal terms.
The conditions governing rural women's participation in productive activities are strictly related to the gender-based division of labour. Unfair wages, job insecurity, and the absence of a formal contract; and, again, how many activities women perform and how these relate to the size of the farm, are all part of this pattern. Additionally, women are either denied access to land, or they have precarious tenure and inadequate access to other productive resources.
Statistics on women's participation in the Latin-American workforce show that even though their numbers are rising 20, a picture of marginalization is what emerges from data on such questions as wages, working hours, formal contracts with employers, and social security benefits in the various countries is one of alienation.
(20 BARSTED LINHARES, L. 1990. Información acerca de la situación de la mujer rural frente a la legislation en Brasil. Río de Janeiro, CEPIA. 16 p. (Mimeo).)
Concerning wages, studies in the different countries recognize that women are usually paid less than men of the same class for the same work. Women are also often recruited for temporary work without any formal, legal contract with the employer, which implies lower wages, irregular working hours, disregard by the employer for the provisions of the labour laws and, as a result, a total lack of social protection.
Rural women are much harder hit by exclusion from access to land or by precarious land tenure than rural men of the same class and ethnic group.21 This is linked to their precarious access to other productive resources, as there is a direct link between women's ownership of land and their possibility of obtaining credit, technical assistance and training, and participating in farmers' etc., organizations.22 As regards land ownership and how it is related to work, the size of the farm has a direct bearing on how and to what extent women participate in productive activities. For instance, the smaller the holding, the more work they have to do: women's workload is lighter on the larger holdings .23
(21 LEON DE LEAL, M. et al. 1990. Acceso de la mujer a la tierra ... Op. cit. pp. 58-75.)
(22 This is the opinion of such experts as DEERE (1979), LEON DE LEAL (1982), BARSTED LINHARES y PITANGUY (1985).)
(23 DEERE, C.D. 1979. Peasants and proletarians; the struggle of third world workers. New York, Monthly Review Press. pp. 3845.)
The statistical data the countries use in their development plans do not give a true picture of women's contribution to the rural sector. They do not, for instance; take into account women's activities in the informal sector of the economy or in the home. The situation in Brazil is a good illustration of the gravity of the problem: according to 1983 statistics, 93.7% of rural working women had no formal job contract and only a small proportion were able to take advantage of the labour legislation and social insurance.24
(24 BARSTED LINHARES, L. 1990. Op. cit. p. 10.)
All this keeps the rural-woman in poverty - a situation due mainly to tradition stemming from gender-based division of labour and the "value" attached to women compared to that attached to men. The fact that the woman is considered the weaker vessel and in need of protection is partly why she has been assigned "reproductive responsibilities" and, consequently, why she has been denied the possibility of participating in development. As briefly noted in what precedes, there are many different ways in which rural women are excluded from the productive process.
It is not easy to answer the question: in which legislative areas is the Latin-American woman best protected? It can be shown, however, that factors such as failure to acknowledge her productive role, her lack of technical training, and wage discrimination - all stemming directly from her subordinate position - have restricted her access to productive resources.
This problem of value judgements, of course, is to be met with in most countries of the region and not only in the traditions that have, as noted before, led to the emergence of rules of de facto legal force, but also in the explicit regulations deriving from existing legislation. There can be no generalizing as to where the problem is at its most serious, for situations differ from country to country depending on historical, political and economic factors. Some recent studies have, nevertheless, brought out the direct relationship between rural women's exercise of their rights and their degree of control over productive resources.25 If this is true, then it argues to the importance of the implications at law for women's reproductive-related activities and, again, the implications of these if a fair and efficient female participation in productive activities is to be achieved and to be enshrined in the law.
(25 FAO. 1987. Mujeres campesinas ... Op. cit. pp.15-86.)
As mentioned in the previous section, the roles that men and women have traditionally been assigned are based on the values and standards that society has adopted and which come to govern uses and habits, custom, and customary and statute law, and lead to economic differences, of which the wages a person receives is but one. These values and standards reflect an ideological way of seeing things that is based on the assumption that women in general, and rural women in particular, are inferior, weak, and in need of protection.
The effect of all this at law, which is to subordinate women, are governed by three fundamental factors: (a) the origin of the legislation and of the authority of the lawgiver; (b) the dynamics of custom vis-à-vis written law; and (c) the area of the law in which the discriminatory rules are to be found.
Law, as the product of legislation, is the written expression of rules having legal force that are established by custom or are the written expression of the conscious intent of those with authority to change uses and customs contemplated in customary law, into customs as distinct from the latter, or in statute law.
Legislation may be defined as the body of rules, corresponding to objectives set more or less consciously by human beings to regulate society. All institutions of the law, therefore, respond directly or indirectly to the conception of society held by those who have brought those institutions into being, i.e. by those holding power, which may be defined as the ability to act on behalf of another. Power is also synonymous with dominion, authority and capacity to exact obedience.
The rules of law differentiating the legal status of men from that of women are no doubt largely an extrapolation of the unequal power relationship between the sexes arising from gender-based division of labour. History has shown that unequal power relationships are characteristically hierarchical and oppressive and place individuals in different situations: some in a position of unjustifiable authority, others in an equally unjustifiable subordinate position. Thus, the fact that males have been assigned functions considered of paramount importance for the preservation and continuity of society as a whole, and are given authority in all spheres of activity, including the household, has led to male-oriented legislation and to insufficient participation by Latin-American women in their countries' legislative areas.26
(26 BAENA DE ESPARZA, R. 1982. Considerations sur la division .... Op. cit. pp. 209-216.)
Whether discriminatory customs have been assigned the force of law by enactment, or are just inveterate practices clashing with law and impeding or distorting its implementation, they are very important factors in women's legal subordination.
Custom is of even greater importance for Latin-American rural women, for it fills the many gaps where legislation is silent about the specific situation of rural people. And custom, moreover, is a decidedly effective barrier to the implementation of non-discriminatory rules in the countryside, where it is even more entrenched than in the urban sector.27
(27 FAO. 1990. La situación de la mujer campesina ... Op. cit. pp. 6-12.)
It is essential to recall here that the customary law observed by the Latin-American indigenous peoples ceased to apply to most of the rural sector following the eradication of their culture and the ensuing breakdown of indigenous political and social life that began with the Conquest and continued throughout colonial times and under the Republican governments that came to power with the 19th Century. When one speaks of customary law today what is meant is an integrated body of legal rules, customarily observed and binding under sanctions, that is still to be found in operation in some isolated indigenous communities. Mention has also been made of the existence of a parallel set of rules in certain areas of the law (especially criminal law), observed in certain indigenous or marginal communities again representing so many "enclaves" of informal law .28
(28 BRANDT, H.J. 1989. Justicia Popular: nativos y campesinos. Lima, Fundación Friedrich Neumann. 2 ed. pp.180-199.)
The customs having force of law generally observed with respect to rural women in Latin America, which fill in gaps in the law (or in practice hinder its correct implementation), do not appear to constitute a full set of guidelines for social organization. They seem rather to have sprung from prejudices29 which have been incorporated into the value systems of rural social groups, influencing certain specific areas within the law (areas inevitably having some connection with women's reproductive role and the implicit and erroneous conception of women's legal capacity*.
(29 Prejudices or preconceived opinions and biased attitudes are defined by Allport as "antipathy based on false generalizations, directed against an individual because he/she is the member of a particular group". There is a link between prejudice and stereotypes, the latter implying preconceived opinions about class, groups or objects, stemming from patterns of perception and judgement, and not from opinions formed about individual phenomena.)
Although such customs are limited to certain areas of the law having to do directly with biological and social reproduction and, consequently, with the inferior role assigned to woman in society, the answer as to just how much of a hindrance they are and to what extent these customs are observed will depend on such circumstances as the position of the rural woman in the various peasant economies, her class status or her ethnic group, which determine the options available to her and the complexity of the social and domestic work she does.
This, again, is sure to determine the effectiveness of actions and strategies designed either to correct legislation sanctioning customs that discriminate against women, or to correct customs which hinder or distort the implementation of unbiased legislation.
Custom, in principle, precedes and gives rise to law. Because of the widespread destruction of political and social organization that occurred on this continent, most of the rural customs that subordinate women today were, as noted earlier, established by the conquistadors and settlers in the first place, and then taken over by the big landowners and local leaders with the advent of the Republican era. Many of these customs then took on the status of law and were incorporated into legislation based on European codes, the most important of which in Spanish and Portuguese Latin America was the Code Napoleon.
Under this Code, adopted with amendments in the new republics, women were treated as adult minors, on the paternalistic pretext that they needed protection. The Code also contained numerous male-oriented provisions; for instance, the administration of the woman's property fell to the man, even though he was under no obligation as regards its proper and efficient management. According to the rules of succession in many countries, the married woman, paradoxically, was not numbered among the forced heirs* and was thus left unprotected, contrary to the purpose of the legislation, which was to provide protection - the pretext, moreover, on which the mistaken conception of women's relative incapacity* was based.
The injustices discriminating between the status of men and the status of women (the cases cited above are but a few examples) gave rise to numerous movements designed to prove that not every custom should be converted into law, and that a discriminatory custom enshrined in law not only adversely affects the individuals directly involved but undermines overall development as well.
These views have been gradually accepted by some governments which have passed laws repealing and amending discriminatory rules. Legislative reforms have varied from country to country, responding to their respective concrete historical situations. Military dictatorships, for example, or the lack of economic and social development in some countries have slowed progress in bettering women's status in law. On the other hand, because the content of law is inevitably geared to a particular social, economic and cultural context, it often happens that not all the aspects of subordination are taken into account, with the result that the legislation is incomplete and lacks enforcement regulations and ways and means of making it effective.
The application of law and the rules for the settlement of disputes or the claiming of rights are also bound up with this situation. Officially, law requires compliance with a number of formalities (presupposing equal participation in economic and legal areas) but in practice this does not really happen.
As regards the judiciary's role in dealing with litigation and in the struggle for the recognition of rights, sociologists detect a common lack of confidence in and ignorance of this branch of Government among rural people (particularly women), but there are no gender-disaggregated data available offering a clear idea of the problem in Latin America.
The implication of all these difficulties in effectively enforcing unbiased laws in rural areas, and the role of tradition in impeding the enforcement of such laws and filling in any gaps in them, is that in most Latin-American countries, rural inhabitants lag behind urban dwellers not only in terms of socioeconomic development but also in their understanding and use of the law. It also suggests that the woman's subordinate status is even more marked in the rural areas where so many of the customary rules, more widely observed there, are prejudicial to women, who lack the arms to oppose them.
The figure below illustrates how custom and law interact.
FIGURE 2 - CUSTOM AND LAW: HOW THEY INTERACT
* The customs referred to here are those (de facto unions*, for instance) where the lack of statutory enactment has serious consequences.
** The statutes in this case govern traditional discriminatory rules; the repeal of such legislation should be accompanied by strategies and actions designed to change the discriminatory custom that led to the law being enacted.
*** When a discriminatory custom prevails over non discriminatory legislation and impedes its implementation strategies should be adopted to ensure compliance and to change the discriminatory custom.
Reproductive and productive activities imply a series of concrete links which, in the specific area of law, take the form of rules governing behaviour between individuals, and acts of individuals where property is concerned. The rules find expression in the provisions of the law or customary legal procedures that regulate concrete situations. This is why most of the unfair rules are found in the various areas of subjective law* (e.g. those of Criminal, Civil, Labour and Agrarian legislation), which governs the exercise of the individual's rights, and almost never in objective law*, which sets out more general legal principles.
The conceptual origin and legal consequences of this unfair legislation are closely interrelated. As noted earlier, the key factor determining woman's role in society and underlying the discriminatory rules applied to her is the restriction of her activities to her reproductive role, a presupposition that reappears in all areas of subjective law. For example, the exercise of land tenure rights by rural women has repercussions on other institutions of the law (such as the marriage regimes*, de facto unions or successions). The final outcome of this interrelationship will depend on the conceptual content of the rules governing such institutions. The implications for women's access to land by women differ depending on whether or not the rules governing marriage regimes embody the concepts of ''marital authority", of consensual unions, or, again, of wives or companions included among the forced heirs.
Underlying discriminatory laws in Latin America are the paternalistic preconceptions of the Code Napoleon, on which the Civil Codes of most countries in this continent are based. Under paternalism, laws that apply specifically to women are based on their need to be protected and hedged round because of their being weak and defenceless - characteristics, these, assigned to the female sex.
And yet, if one looks at the interaction of discriminatory legislation in the various fields of Law, it will be seen that these legal rules often afford little protection and that they actually leave those whom they are supposed to protect quite defenceless. Testamentary succession in countries where the spouse is not an obligate heir and, under certain marriage regimes, where the administration of the wife's and the community property* by the husband (who is not held accountable or responsible before the law for gross negligence in his administration of such property) confirm this.
These considerations warrant the conclusion that the real reason behind this paternalistic philosophy is people's conception of authority, which is the decisive factor in men's domination of women. According to one dictionary definition, authority is "the power to require and receive submission: the right to exact obedience to dominate others", and, according to another definition "implies one becoming dependent on another". Dependency in the present context implies that, among other things, the man has control over the woman's capacity to engage in productive activities.
On this premise, the rural woman's subordination in law becomes easier to understand, for it follows from the rules that limit her civil capacity and consent to unequal working conditions and unequal access to productive resources. Again, the introduction of the "authority" factor into the analysis of subordination makes things clearer, as this factor underlies all discriminatory legislation (unlike paternalism, which has to do with protection alone).
To those who argue that protection/defence provide the rationale for such legislation, it must be countered that this aim cannot be consistent throughout the legislation as there are too many cases where injustices sanctioned by the law victimize women, where the idea of "protecting" them is entirely absent.
Accordingly, the rules that result in women's subordination, whether these are actually embodied in the law or are sanctioned by practice, belong to those areas of subjective legislation that deal with matters relating to gender-based division of labour and with the philosophical presuppositions sustaining them.
In civil law, such rules are likely to be found in family law and in all provisions closely related to the family and the traditional family power structure. They find expression in husband's authority, which is recognized explicitly or implicitly in some marriage regimes, in patria potestas, i.e. where the law expressly establishes the authority of the father, in succession*, and in cases where the law is silent on questions relating to the family and the home - a silence which is particularly prejudicial to the woman.
The discriminatory rules in labour law also stem from the rationale that the woman's major responsibility lies in the reproductive sphere, and the impact that this has on her productive work. They include the statutory and customary provisions that bar women from certain types of work and protect maternity (not, be it noted, as a social function but rather as a concession to the woman). Labour law also fails to provide for certain situations, and this gives rise to inequality between men and women, and particularly rural women whenever the law is silent on the subject of the rural woman worker.
In agrarian legislation, the discriminatory rules relating to the woman's access to productive resources are also likely to be found in legislation and customs governing the woman's work in the reproductive sphere. The interrelationship between civil and agrarian law is very marked here, since the rural woman's access to productive resources is directly a matter of civil law. It should be noted that because agrarian law is a more recent branch, it has not developed equally in every country; and it should also be pointed out that custom acts to reinforce discrimination in all the branches of law considered here.
