I’m not happy with this but it’s as good as it’s gonna get and I try to keep stuff up here for archival purposes.

Gendered Social Legal History of Latin America

In this essay I survey recent scholarship on Latin American history that treats women’s history and gender history in relation to legal history, with what I call a ‘law and society’ approach. This seems to be at the same time a fairly recent area of scholarship and a vibrant one. As the awkwardness of my opening sentence attests, though, this type of scholarship does not yet have a pithy name. For the sake of brevity I will use the term feminist critical history in this essay.[1] Feminist critical history shows the importance of law in structuring gender relations. At other times it how law is conditioned by social relations and ultimately limited. Feminist critical history also treats law as facilitating both structure and agency, social control and resistance, and in each use law sometimes proves useful and sometimes comes up short.

Bianco Premo’s book on childhood as both a social and a legal category argues that much of the time “adult-child relations often operated outside the ideal patriarchal boundaries established in edicts and codes.”[2] Put another way, the normative ideal of the family and authority was used to police social realities which did not conform that ideal. Legal definitions are not statements of social reality, but rather are one piece of how some institutional actors related to people.

Law as written does not clearly express social reality. If anything, it is a statement of efforts to change social reality. To get at the relationship between law and lived reality, Premo argues that scholars must “look beyond volumes of codified law and royal edicts, into the city’s streets, homes, and workshops.”[3] This is important because, among other reasons, “laws were not always followed.”[4] Furthermore, law as written does not always express actual legal practice. It is not sufficient to simply chart the history of law from the perspective of law as written: law as practice must be investigated, and in the context of a broader context of social practices.

Law and Agency

In Runaway Daughters Kathryn Sloan argues that law facilitated women’s agency as well, arguing that in late 19th century Mexico young women used the practice of rapto – abduction or seduction – to get around their status as legal minors. By cooperating with and in some cases helping plan their so-called abduction, Sloan argues, young women were able to challenge the authority of their parents in order to have more control over their marital and sexual options. Parents sought to charge the women’s partners with the charge of rapto but rarely succeeded. Out of more than 200 rapto cases Sloan found less than ten that resulted in imprisonment for the men involved. Sloan suggests that late 19th century judges’ growing commitment to liberal individual rights encouraged them to treat young women as legal agents in a way that earlier judges were not inclined to do. Law, for Sloan, was an important avenue for young women’s agency. Sloan suggests that young women probably knew about the law and court findings, and that they used practices which were likely to result in a charge of rapto deliberately. In the vast majority of rapto cases, judges declared young women who were not yet of age to be adults for legal purposes. Thus, despite the letter of the law which dictated that children were to obey parents, through the law in practice young women were able to gain greater control over their lives.[5]

In addition to marriage as a facet of parent-child relationships, the meaning of marriage as a relationship between husbands and wives has formed one major area of legal conflict in many countries. Men sought to establish a legal interpretation of marriage that gave them absolute power over wives. Women on the other hand sought interpretations of marriage that placed limits and obligations on men in addition to women.

Sarah Chambers argues that women in late 18th and early 19th century Peru argued in court that marriage did not just amount to men’s power over women. Marriage, these women argued, was mutually obligatory. Wives “recognized husbands’ superior position, but described the ideal relationship as ‘reciprocal.’”[6] According to this vision of marriage, men were obligated to support and not abuse their wives. When husbands did not live up to their end of the bargain, women argued, wives had a right not to follow their husbands’ authority. Chambers notes that lack of material support as well as physical abuse could be grounds for women’s complaints.

Arlene Diaz found a similar dynamic in 19th century Venezuela. In their suits, women stressed their conformity to gender norms. They emphasized that they lived up to expectations on women, being submissive, keeping house and cooking and so forth. Shoring up their own status as good women paired with a rhetorical strategy of attacking their husbands for being bad men. In her suit for divorce, Francisca Lameda de Vazquez argued that in marrying her, her husband “contracted with me and with society” to be a good husband and father. Since her husband’s failure to provide for her and her children meant he had not honored his end of the bargain, she argued, she should be released from her status as his wife.[7] Diaz suggests that women like Lameda de Vazquez “delegitimiz[ed] the superior legal position of men by demonstrating that (…) their male partners did not fulfill their duties.”[8]

Steve Stern argues that women in late 18th and early 19th century Mexico pursued “social strategies” that “set up male-male rivalries and hierarchies as a check on the power” of the men in their lives. Stern refers to this as “pluralization of patriarchs.” Stern focuses primarily on informal power and social networks, but he includes women’s resort to the formal legal system in this strategy. [9] Even when wives could not get the legal rulings that they wanted, the process of being brought to court still served as a way to hold husbands accountable. By bringing husbands to court and having their behaviors made public wives could expose husbands’ ill behavior to the disapproval of other people, as well as forcing them to listen to wives’ recounting. These actions appealed to higher male authorities to hold husbands temporarily powerless and force them into a performance which must have felt frustrating and embarrassing.

Law and Domination

While law did provide some measure of agency for women, this should not be overestimated. That some women were able to make use of law to temporarily better their circumstances does not mean that law helped women over all, nor does it negate the fact that many laws disadvantaged women. Kristin Ruggiero’s work on domestic violence in late 19th century Argentina provides an example of the negative side of law. Argentine law included a doctrine of “justifiable pain” which held that under some circumstances otherwise reasonable people would understandably lose their reasoning capacity and perform acts which they were not responsible for, however regrettable these actions may have been. The law explicitly included men who found out their wives had committed adultery as an example.[10] Ruggiero notes that while nothing in the law said that the justifiable pain doctrine excused murder, judges routinely excused men for killing their wives based on allegations (proof was not required) of adultery.[11] Women who murdered their husbands rarely succeeded in claiming justifiable pain as a defense.

Chambers stresses that while women resorted to the courts in the face of domestic violence, they often did not succeed. Indeed, Chambers suggests that lawmakers and judges displayed a merely rhetorical commitment to the rule of law when it came to women. Peruvian Republicans spoke of respect for women and displayed a commitment to social order and to morality, but this did not extend to preventing violence against women. Judges generally did not penalize men for violence against women, as long as it stayed in the home and did not disrupt social order outside of the home.

Chambers and Ruggiero demonstrate the limited utility of law for women seeking recourse against violent husbands. Chambers make the important point that “any official line between legitimate punishment and excessive brutality was largely fictitious because it usually was drawn after a woman was murdered.”[12] While law can be viewed has having limited utility for women in need of protection from violence, that formulation can be modified by changing perspective: law was eminently useful for preserving men’s power over women.

Law essentially allowed Peruvian and Argentine men to assault and often murder their wives with a large degree of impunity. This is not simply a matter of legal inaction – failure to act in the face of social phenomena – but of legal sanctioning. Just as Sloan found that lack of consequences for young women and men who sought to elope meant that Mexican judges effectively encouraged the practice of elopement, lack of consequences for men meant that Argentine and Peruvian judges effectively signed on in support of severe violence by husbands.

Analysis of women and gender alters our understanding of periodization. As I have already detailed, Chambers argues that republicanism in Peru had only a rhetorical commitment to preventing social disorder when it came to men’s violence against women. Similarly, Ruggiero argues that the growth of liberalism in late 19th century Argentina did not expand options for women. Ruggiero writes that “law was discouraged from the sacred interior of the family.”[13] As liberalism enshrined the rights of men, women’s rights did not increase in part because men’s rights included rights of power over women. Law thus was “complicit in keeping alive a sphere of private justice” which made household affairs not a matter of public concern.[14] Arlene Diaz argues a similar thesis for late 19th century Venezuela. While Venezuelan elites embraced ideas of liberalism and created ostensibly more liberal governance, securing individual rights and ideas of equality, in actual practice women did not gain much in the way of rights. In some ways, men’s power over women expanded because the state showed greater respect for men’s individual rights over women.

The famous feminist slogan asserts that the personal was political. What these authors describe was a political constitution of the personal as ostensibly non-political. Put another way, liberalism, as with probably all legal forms of patriarchy, involved the delegation of sovereignty to some men over women.[15] We might ask then if liberalism really existed when it comes to women, since most women did not experience a strong liberalization of gendered power relations.

Having discussed some of the limits of the law for women, I would like to now return to Kathryn Sloan’s work on women who eloped. As I described, Sloan argues that young women in late 19th century Mexico were able to use law to gain more power in their relationships with their parents control over their marital and sexual options. Sloan is convincing when it comes to marriage choice, but she does not discuss men’s power over wives in any significant detail in that way that some other scholars do. Furthermore, Kif Augustine-Adams shows that women in late 19th century Mexico were not only citizens considered to be dependent on others for their support and subordinate to their husbands, but women’s citizenship itself depended on their husbands. Women who married foreign men lost their citizenship, because Mexican law held that women’s citizenship status followed that of their husbands. Thus not only were women of lower status, their very status members of Mexican nation was contingent upon their relationships with men.[16] All of this suggests that Sloan may be over-emphasizing young women’s agency. While young women were able to choose their husbands, they still faced a great deal of constraint upon marrying and remained in a condition of dependency even after their legal emancipation.

Law and Hegemony?

I suggest that there is a type of agency uniquely accessible through legal history. As I discuss in a moment, disagreement among historians leaves the meaning of this agency unclear. Alejandro de la Fuente’s article “Slaves and the Creation of Legal Rights in Cuba” argues that enslaved women exercised a sort of law-making power. Not only could individual women use law to exert power upon men and to turn positions within gender hierarchy into the basis of claims, women could actively change law in ways that affected other women and men as well. In other words, women’s lawsuits allowed them a measure of lawmaking power which other women could draw upon in the future. For example, in colonial Cuba slave women helped establish a legal precedent that other slaves could make use of. A practice and law called coartacion allowed slaves to pay a sort of down payment on their future manumission. Upon doing so, the price of their freedom became non-negotiable: masters could not raise the price. Over time, enslaved women began to use this in the attempt to legally expand their freedom, arguing that since they had paid for part of their freedom they were partially free. While there were limits to how much freedom slaves could win, one legal victory built on another, establishing a weight of precedent.[17] In a sense, through their legal action, enslaved women pushed forward a partial rewriting of the law into terms somewhat more favorable to women in similar circumstances.

Steve Stern describes recourse to law as one of many “female weapons” (110) that women could use in conflicts with the men in their lives. As I have already discussed, Stern refers to women’s use of a tactic he calls the pluralization of patriarchs, where women appealed to different and higher male authorities against the male authorities in their immediate lives, usually their husbands. This formulation is appealing in that it helps see ways that women made use of the very phenomena that constrained them in order to have more control in their lives. On the other hand, if the logic of this is extended it has strange results: patriarchal gender norms are a type of weapon for women? Arguably, yes, but what is the other effect on women of some women’s use of this sort of weapon?[18]

Bianca Premo argues that the use of patriarchal norms in pursuit of individual agency reinforced patriarchy as a whole. (209.) Put schematically, for Premo, use of patriarchal norms within legal pursuits of agency shored up the structures of constraint. This raises questions about the type of agency exercised in and through law. Generally, the historians I have looked at do not offer a general answer to this point. Premo suggests caution about the law, seeing it as often helping shore up hegemony. If this is the case, then the power of women in helping make law through the courts, which I discussed at the beginning of this section, amounts at best to securing individual ends at the cost of reproducing and perhaps even fine-tuning domination over other women. Put more strongly, this would suggest that women who used law for their own individual ends were collaborators of a sort, achieving their own aims at the expense of others, even if unwittingly.

Diana Paton observes that subordinated people throughout history have attempted “to make states work in their favor.” Some scholars have viewed “use of the state legal system [as locking] people into accepting the inequalities of the system of power under which they live, while others argue that such practices indicate nothing about the beliefs of the people who adopt them.”[19]

This is an important ambiguity and one which can not be resolved by looking at legal sources alone. If a woman went to court and said “I am not a good woman according to patriarchal gender norms, but give me what I want anyway” then we would be able to say with some conviction that this statement reflected her actual views. Such a statement, however, would make the hypothetical woman’s case much, much less likely to succeed. Presenting one’s self as conforming to and accepting patriarchal gender roles was crucial to women’s use of courts to get what they want. Courts acted in ways which would have rewarded women who did not agree with or want to conform to patriarchal norms for presenting themselves as if they did. As such, legal records alone do not attest to the sincerity of courtroom speech. Given the ambiguity of trial records, it is difficult to assess whether or not women’s recourse to law implied their acceptance of patriarchal norms and if it served to reinforce those norms.

Possible Future Directions

One strength of feminist critical legal history is that it is rich in empirical detail, often focusing on local case studies. This detail is important. At the same time, in moving forward, the field might profit from more general and theoretical discussion about different aspects of gender, law and the character of gendered power relations in law.

Feminist critical scholars assess courts differently based in part on what type of legal cases they address. Bianca Premo argues that the 18th century Peruvian court system was “increasingly interventionist” with regard to custody over children. Kathryn Sloan, on the other hand, viewed late 19th century Mexican courts as being very willing to ratify decisions made by young women with regard to choosing their own marriage partners, a stance somewhere between intervention and non-intervention. Sarah Chambers and Kristin Ruggiero take a third position, arguing that 19th century Peruvian and Argentine courts increasingly failed to act on violence against women.

Of course, all of these views about courts are correct. Courts did what each of these scholars argues they did. Some of this variation may result from the different times and places these scholars focus on. It may be, however, that the very same courts were simultaneously becoming more intervention with regard to child custody, more willing to allow young women to override parental authority and to choose their husbands, and less willing to act on men’s violence against women. That is, it may be that courts were part of a change from one mode of gendered power relations to another, arrangements which may or may not be internally consistent.

Bianco Premo makes occasional reference to the category of social reproduction as a way to understand childhood. Perhaps that same category, with a focus on how law was used all at once in attempt to stabilized, to navigate, and to alter gendered power relations might be useful. Whether or not it is phrased in terms of social reproduction or not, I expect that in the next few years scholars will begin to work at providing a clearer picture of the different and apparently contradictory movements within legal patriarchy, trying to show these differences operating as an ensemble.

In addition to the category of social reproduction, feminist critical historians might also profit from further theoretical discussion of law, hegemony, and patriarchy, to get at the question of the implications of individual women’s legal agency for other women and for women as a group. This discussion might also clarify women’s varying orientations toward the state. The scholar of colonialism Ranajit Guha has argued that colonial states were not hegemonic but simply dominant: colonial states exercised direct coercion much more often than ideological persuasion.[20] Arguably, the examples I have cited dealing with violence against women suggests that patriarchal power has been more a matter of dominance than hegemony. On the other hand, there are two possible alternatives to this interpretation. First, as I mentioned, men’s power over women was (and is) largely a matter of the delegation of sovereignty from the state to private individuals. Constituting violence against women as private, delegating a portion violent social control to individuals rather than state actors, is what allowed the state to appear as a possible arbiter in legal cases. Even though courts rarely helped women in domestic violence cases, perhaps the appearance that the state might intervene formed a type of hegemony of the state over women. Second, it may be that patriarchal power is not hegemonic over women but is maintained in large part by hegemony over men. Eugene Genovese argues in his history of slavery in the United States that a central role of law is as a way for rulers to police other rulers, in service of maintaining rule.[21]

Though historians are often and rightly wary of philosophical views which apply trans-historically, feminist critical legal historians might consider looking at foundational questions of the nature of law. Many feminist critical scholars are familiar with Joan Scott’s work on gender, which sought to historicize gender but also suggested that across different times and societies gender is a system of power relations and bound up in important ways with language. Similar reflection on the nature of law may be useful as well. Some scholars do engage in this sort of reflection, as in the case of Elizabeth Dore and Maxine Molyneux’s edited volume Hidden Histories of Gender and the State in Latin America. While most of the essays in the volume are case studies, the editors each contribute a long synthetic essay trying to chart change over time and continuity over different spaces and societies.

One important observation that Elizabeth Dore makes in her essay is that states tend to naturalize their power and the extra-state forms of power which they approve of. The reification of power relations, or rather criticizing and exposing them, has provided a motivation for historians in many fields for many years. It is striking that both state power and patriarchal power overlap and reinforce but also tend to be presented by adherents and apologists as eternal and natural. I do not have an argument to make here about what this says about states and patriarchy, but further inquiry into this naturalizing tendency – among other things, it is tempting to ask if reification as a social or ideological practice has a history – might prove fruitful as a way to further explore the relationship between law and gender.

A final area of possible inquiry for feminist critical legal history is in the intersection at law of women, dependency, slavery, and labor. In an essay on the history of labor and employment law, Christopher Tomlins suggested that that field might reconfigure itself as a general “history of law’s authorization of power in social relations” including “specific productive and reproductive sites” including “the household, the family, the enterprise, the school, the state.” This would be “a history of domination” as well as one of conflict.[22] (21.) Tomlins suggests that labor law history should take up this goal, attempting to produce “a synthetic retheorization of labour as the primary object of struggle in American political economy and legal culture, and as the primary subject of the discourses defining that political economy and culture.” (20.) Tomlins’ hope for synthesis and his willingness to engage with big theoretical question is laudable. Feminist critical historians might take gender as subsuming Tomlins’ effort, and take up a project of similarly far-ranging scope.

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[1] As far as I know, no one refers to themselves with this term. I am not committed to this term and do not have an argument about it. I simply use it to avoid lengthy and cumbersome phrasing. I will, however, explain my rationale. I use the term “feminist” to refer to women’s and gender history. I realize that some scholars argue over the degree to which women’s history is gender history and vice versa, and the degree to which one or the other or both is sufficiently feminist. Whatever the merit to those debates may be, I will not get into any of that here. I simply think “feminist” makes for a better adjective than “gendered.” I take the “critical” part from Robert Gordon’s essay “Critical Legal Histories,” as a shorthand for what I mean by a law and society approach to legal history. This approach can be but (unfortunately) is not always feminist in the sense in which I use the term in this essay; thus my use of the two adjectives. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review, 36 (January 1984): 57-125.

[2] Bianca Premo, Children of the Father King: Youth, Authority, and Legal Minority in Colonial Lima, (Chapel Hill: University of North Carolina Press, 2005).

[3] Premo, 43.

[4] Premo, 7.

[5] Kathryn A. Sloan, Runaway Daughters: Seduction, Elopement, and Honor in Nineteenth-century Mexico (Albuquerque: University of New Mexico Press, 2008).

[6] Sarah Chambers, “‘To the Company of a Man Like My Husband, No Law Can Compel Me’: The Limits of Sanctions against Wife Beating in Arequipa, Peru, 1780-1850,” Journal of Women’s History vol. 11, no. 1 (1999), 31-52; 35.

[7] Arlene J. Diaz, Female Citizens, Patriarchs, and the Law in Venezuela, 1786-1904. (Lincoln: University of Nebraska Press, 2004), 217, 160.

[8] Diaz, 240.

[9] Steve J. Stern, The Secret History of Gender: Women, Men, and Power in Late Colonial

Mexico (Chapel Hill: University of North Carolina Press, 1995), 99, 101.

[10] Kristin Ruggiero, Modernity in the Flesh: Medicine, Law, and Society in Turn-of-the-Century Argentina (Stanford: Stanford University Press, 2004), 175-176.

[11] Ruggiero, 179.

[12] Chambers, 46.

[13] Ruggiero, 201.

[14] Ruggiero, 35.

[15] I got the idea of delegation of sovereignty from an anthology on the history of insurance edited by Tom Baker and Jonathan Simon, who argue that “insurance can be a crucial form of delegated state power. Rather than set its own criteria for access to vital economic freedoms like operating an automobile or a business (which would be controversial and even, perhaps, unconstitutional), the state mandates that a person wishing to engage in any such activity first obtain some form of insurance. Examples include liability insurance for automobile owners, workers compensation insurance for employers, and surety bonds for companies engaged in business with the state. In most cases, the state avoids providing the insurance and thereby asks the private market – typically property-casualty insurance companies – to set the underwriting criteria that will determine access to these privileges and immunities.” Tom Baker and Jonathan Simon, Embracing risk: The changing culture of insurance and responsibility, (Chicago: University of Chicago Press, 2002; 13). Talk of husbands disciplining wives as well as courts occasional willingness to at least consider intervening in husbands’ actions suggests to me that patriarchy as a legal regime revolves largely around the delegation of sovereignty, which the state views as sometimes revocable.

[16] Kif Augustine-Adams, “Constructing Mexico: Marriage, Law and Women’s Dependent Citizenship in the Late-Nineteenth and Early Twentieth Centuries,” Gender & History Vol. 18, No. 1, (November, 2006), 20-34.

[17] Alejandro de la Fuente, “Slaves and the Creation of Legal Rights in Cuba: Coartacion and Papel,” Hispanic American Historical Review 87 (2007): 659-692.

[18] In thinking about law and gender, I have come back repeatedly to the decidedly unscholarly metaphor from Jackie Chan’s martial arts films. In many of Chan’s movies, the reluctant protagonist played by Chan finds himself trapped in a corner surrounded by attackers. Trapped, Chan’s character runs and leaps onto the wall on one side of the corner. In a combination of bouncing, jumping, and running, he climbs up the corner of the wall and then leaps over the heads of his attackers to escape. The sequences are formulaic in the film, primarily an excuse to display Chan’s physical prowess, but I think the image parallels women’s legal agency much of the time. Chan’s characters make use of the physical environments that trap them to escape from or fight against attackers. Individual women in many times and places have made use of the laws and gender norms that constrain women over all in order to have more power in relation to the men their own lives. Whether or not this challenges structural patriarchy or reinforces it is an important issue, but one that I do not know how to address.

[19] Diana Paton, No Bond But The Law: Punishment, Race, and Gender in Jamaican State Formation, 1780-1870 (Durham: Duke University Press, 2004), 80-81

[20] Ranajit Guha, Dominance Without Hegemony: History and Power in Colonial India (Boston: Harvard University Press, 1997), 20-24.

[21] Eugene Genovese, Roll Jordan Roll: The World the Slaves Made (New York: Pantheon Books, 1974).

[22] Christopher Tomlins, “How who rides whom. Recent `new’ histories of American labour law and what they may signify,” Social History, Vol. 20 No. 1, (January, 1995), 1-21.

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