R. Aída Hernández Castillo

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Anthropological Constructions of Law and Custom

The current debate between defenders and detractors of indigenous autonomy is but one more expression of the long-running debate over equality and difference which has marked the development of legal anthropology. Malinowski (1926) and Radcliffe-Brown (1952), considered by many to be the ‘fathers’ of legal anthropology, represent both sides of this debate. Malinowski believed in the universality of law, arguing that every society, including ‘primitive’ societies, establish rules of behavior. From his perspective, ‘aboriginal’ and ‘western’ normative systems were guided by the same logic, the ultimate goal of which was to respond to the economic and social interests of individuals. By contrast Radcliffe Brown, although he did not vindicate cultural relativism (which would not become popular until decades later), referred to different cultural logics and developed the idea of conceptual difference between law and custom. For Radcliffe-Brown, law was a characteristic only of societies with a centralized government and its existence was an indication of a superior developmental level.

The famous debate between Max Gluckman (1955) and Paul Bohannan mirrored these earlier tensions. Gluckman was of the view that all human beings tend to resolve their problems in a similar fashion. In his opinion the Barotse judges of Rhodesia (where he carried out his fieldwork) and the judges of western societies would, if presented with the same problems, tend to create laws based on similar criteria. On the other hand, Bohannan believed in the existence of different cultural logics, which explained why what was considered a crime among the Tiv of Nigeria and what was against the law according to the judges of western societies was quite different. The political consequences of both discourses within the colonial context in which they were developed were significant. If aboriginal peoples had a legal system, then it could be used by the colonial administration in what was called ‘indirect rule’: using local indigenous authorities and institutions to control the colonized population. If, on the other hand, it were deemed that indigenous ‘customs’ could not be considered laws, then the legal system of the colonial power would be directly imposed. (See Collier, 1995).

As these early examples indicate, the context of domination from which discourses around equality and difference emerge determines the uses to which they are put, irrespective of the political intentions of those advocating one or the other position. Emphasizing equality can lead to an ethnocentrism, which imposes the western world-view as the looking glass that colors the social processes, institutions, and cultural practices of other societies. Similarly, emphasizing difference can serve as an instrument to ‘orientalize’ non-western societies, to transform these societies into the ‘other’ and thus permit a definition of western culture based on discourses of rationality and progress.

The difference between ‘law’ and ‘custom’ developed by Radcliffe-Brown, and upon which much of the later development of legal anthropology was based, originated in the eighteenth century definition of law as a contract between individuals. The religious concept of ‘divine law’ that prevailed prior to the Enlightenment was replaced by the idea of law as a contract between free individuals that would help overcome the chaos of the ‘state of nature’. ‘Custom’ was subsequently conceptualized as that which opposed the free and rational contract of the ‘law’. Just as it is impossible to imagine civilized man without the opposing concept of the savage, so, it could be argued, the concept of law cannot be conceived without the concept of custom. Throughout different historical periods, a diversity of cultural practices enforced within different contexts and authority structures were lumped together under the category of ‘custom’ in opposition to (western, rational) ‘law’. In one sense then, ‘custom’ is the savage seen in the mirror of the – civilized – ‘law’.

In some contexts the discourse on cultural difference has obscured the relations of subordination that have given rise to and shaped the development of many of the cultural practices of groups considered ‘non-western’.18 Some of the pioneering works of legal anthropology in Chiapas suffer from this last failing (See Collier, 1973, Hermite, 1964). The analysis of dispute processes among Zinacantecans carried out by Jane Collier in the 1960s emphasized ‘folk’ concepts which related conflict to illness, used to explain the Zinacantecan desire for reconciliation between conflicting parties rather than punishment of the offending group or individual. In her later work Collier recognized that the prevailing theoretical paradigms of the 1960s did not prompt her to explore either the relationship of Zinacantecan law to state and national law, or the power relations between local leaders and the regional and national power elite. (See Collier, 1995)

The functionalist conceptions of ‘law’ and ‘custom’ which prevailed in legal anthropology until the 1970s continued to conceive of the juridical realm as a sphere that could be analyzed independently of other social and economic processes. Supporters of the analysis of normative systems, following the methodological tradition of Radcliffe-Brown, together with those who, in the Malinowskian tradition, advocated the analysis of juridical processes, effectively ignored the ways in which the systems or processes they analyzed functioned within colonial or post-colonial relationships of domination. In Mexico, the influence of Marxism and political economy in anthropology led to a questioning of these theoretical paradigms, and gave rise to a critical anthropology which pointed to the relationship between the analysis of power and the analysis of culture. For example, adopting the process methodology developed by Laura Nader among the Zapotecans (and used also by Jane Collier in her analysis of Zinacatecan Law), Teresa Sierra has analyzed dispute processes among the Nahuas of Puebla, and contextualized these processes in the framework of relationships of domination with the nation-state. Sierra advocates an approach which analyzes the relations between dominant and dominated normative systems, which are articulated through strategies developed by indigenous people when they recur to one or other legal authority (See Sierra 1993, 1995, Sierra and Chenaut, 1995).

Advocates of alternative theoretical currents who claim to defend indigenous peoples have not only presented their ‘cultural logic’ as isolated and in opposition to the dominant ‘culture’, but have often given in to the temptation of presenting indigenous peoples as homogeneous and harmonious. Many well-intentioned anthropologists in Mexico who became personally involved in the indigenous people’s struggle thus tended to ignore internal contradictions within indigenous communities and restricted their criticism to the relationships of subordination that indigenous peoples are subjected to within the nation-state (Bonfil, 1987; Bartolomé, 1977; Stavenhagen, 1988; Varese, 1988). This tendency to overlook indigenous heterogeneity and ignore internal conflicts in order to construct a homogeneous and harmonious ‘other’ was questioned by later studies and is even considered by some to be a new form of colonialism. Said (1978) famously referred to this tendency as ‘orientalism’, and Mohanty (1988) has called it ‘discursive colonialism’. Mystification of the ‘other’, however noble the overall objectives, merely serves to make the ‘other’ into a reflection of western aspirations: indigenous people are thus viewed as ahistorical objects, bearers of immutable ‘tradition’, rather than understood as historically constructed subjects.

During the 1980s and 1990s anthropological research developed historical perspectives on indigenous normative systems: for example Anna Garza for San Pedro Chenalhó (1999), Jan Rus for San Juan Chamula (1997), Peter Fitzpatrick for New Guinea (1980, 1991), John and Jean Comaroff (1985, 1991) and Cooper and Stoler (1989) for Africa. Such approaches have contested essentialist representations of indigenous normative systems as some kind of timeless relic of a pre-colonial past.19 Instead ‘indigenous customary law’ is analyzed as a social construction which has emerged within the context of power relationships, and which, like state law, has suffered constant modifications as a consequence of complex social processes.

Feminist anthropology has also contributed to a rethinking of the interplay between power, culture and legality. Many studies have indicated that law is important for women not only because it contributes to the construction of their identities as subordinates, legitimizing patriarchal culture, but also because in certain contexts it can be used by women themselves to construct spaces of resistance. (Fineman and Thomadsen, 1991; Lazarus-Black and Hirsch, 1994; Smart 1989). Through historical investigation, scholars have analyzed the ways in which the patriarchal system in Mexico was ‘rationalized’ with the establishment of laws which prohibited violence against women but justified other forms of control (Alonso 1995, Varley 2000). However, while recognizing that national law reproduces inequalities, feminist legal anthropology has also explored the ways in which women have used it to challenge decisions of indigenous customary law they consider unjust (Chenaut 1999, Moore 1994). Analysis of processes of dispute resolution in indigenous communities has shown that while conciliatory procedures may mitigate conflicts, more often than not they reaffirm the subordinate position of indigenous women (Collier 1995, Garza Caligaris 1999, Sierra n.d.). Many feminist perspectives are characterized by the tension between the analysis of normative systems as reproducers of gender inequality, and the recognition that some of these legal spaces are of strategic value to women for the construction of a more just life.
State Law vs. Indigenous Customary Law? The Many Faces of ‘Custom’

An underlying premise of legal reforms to recognize indigenous norms and practices (usos y costumbres) is that state law and indigenous customary law are discrete, distinct systems informed by different cultural logics. This separation between ‘state law’ and ‘custom’ can be traced back to the very constitution of state law itself. In order to legitimate itself as a symbol of western rationality, national law has depended on ‘custom’ to represent backwardness and pre-modernity (see Fitzpatrick 1992). In the same manner ‘custom’, when constructed within legal and academic discourses as a homogeneous otherness, can only be imagined as an alter ego of western law. In other words, indigenous peoples’ normative practices have been re-framed as ‘customary law’ in a continuous dialogue with colonial and postcolonial powers in order to legitimize the latter.

However, in contrast to supposed indigenous homogeneity, the politico-legal norms and traditions of indigenous peoples in Mexico are in fact highly heterogeneous. In some regions they reproduce concepts of justice and morality inherited from colonial religious authorities. In others indigenous world-views which link crime and conflict with illness, and conciliation and forgiveness with health are in evidence (see Collier 1973). Yet even though broad differences between the cultural logic underpinning indigenous and mestizo society can be discerned, indigenous law and national law are not isolated spheres: rather, the legal strategies of social actors who make recourse to both realms of justice means they are in continual interplay. Rather than the existence of two independent legal systems, the national and the indigenous, one dominant and the other subordinate, what in fact exists in practice is a mutual constitution of indigenous and national law. Instead of positing the existence of two separate legal systems guided by distinct cultural logics, it would be better to speak of a shared legal map onto which different, overlapping normative systems are traced in an interaction which necessarily affects the very substance of those legal systems themselves.20

The Mexican State legal system, represented in Chiapas by the district court of San Cristóbal de las Casas, belongs to the Roman civil law tradition. Complaints are presented before the public prosecutor’s office (Ministerio Público), which is charged with representing society and ensuring justice in the enforcement of the law. Once charges have been made, an investigation takes place and the case is prosecuted via written documents without a public trial ever taking place. The accused usually contracts a defense lawyer who presents appeals and petitions. In the case of a guilty verdict, the criminal judge decides the sentence. The central objective of this process is to determine and punish the guilty parties. By contrast indigenous law, ‘heir to pre-hispanic legal systems’, is represented by indigenous town councils located in the municipal seats. Here municipal authorities established according to state law are combined with civic-religious authorities in which community elders play an important role. Council meetings to resolve conflicts are public, the parties to a dispute bring their respective witnesses, and an important role is afforded to elders in efforts to secure conciliation. The central object of this process is to arrive at an agreement and reconcile the parties in conflict.

According to the majority of studies comparing the two, the indigenous legal system is based on ‘tradition’, while the national system is founded on the federal Constitution. The former is administered by authorities appointed and controlled by the community, the latter by paid public functionaries; indigenous procedures are oral and flexible, in contrast to state legal proceedings which are written and schematic; lastly, indigenous law aims for conciliation, state law for punishment.21Although these typologies are not entirely without justification, in general they have been used to oversimplify very complex processes. ‘Custom’ and ‘tradition’ are disputed terms and are defined differently by different sectors of the community.22 What is understood by the term ‘traditional authorities’ in each region ranges from civic-religious authorities to the new autonomous authorities formed by pro-Zapatista communities since 1994, with a multitude of new hierarchies and organizational structures created by Catholic and protestant groups in between. The problem of recognizing ‘tradition’ is thus much more complex than the amendment to the fourth article of the Constitution and the expert anthropological testimony of the INI would suggest.

Although a highly heterogeneous range of ‘traditional’ authorities and dispute resolution practices exist throughout indigenous communities in Chiapas, the common denominator which links them is the use of ‘custom’ to denote ‘otherness’ in contrast to state law. The meaning and content of ‘custom’ in each region, however, depends on the specific history of each community, their relationship with the state, and the way in which internal power groups have developed. The most striking differences are found between the highlands (Los Altos) and the northern and jungle areas. In most of the highland municipalities, civic-religious hierarchies have long been fused with republican structures of political power. These structures originated in the policies of President Cárdenas during the 1930s, policies which favored the emergence of a new form of indigenous caciquismo (‘bossism’) merging economic, political and ritual power, as exemplified by the case of San Juan Chamula, thoroughly documented by Jan Rus (1994). In the Chol region of northern Chiapas and the jungle communities, civic-religious authorities have all but disappeared. Where they still exist they have lost political power and their functions are confined exclusively to the ritual realm.23

In practice, legal systems and justice administration agencies contribute to the creation of the very identities they are meant to represent (Foucault 1976, Collier, Maurer and Suárez-Navaz, 1995). By legitimizing or de-legitimizing certain norms and practices within indigenous communities, the Mexican State has in fact contributed to their creation.24 By treating cultural identities as essential constructs whose existence precedes their encounter with the legal system, what the law does is obscure the role that its own instruments play in the reproduction of those identities. In the current political context in Mexico, the importance of the state and state law in formulating a discourse on ‘custom’ and ‘tradition’ is increasingly evident. The productive capacity of the law is particularly clear in Chiapas. Here state law has been charged with recognizing and so constructing ‘legitimate’ indigenous law, at the same time as state violence is used against the indigenous Zapatista authorities of the autonomous regions, so creating the idea of an ‘illegitimate’ and ‘unauthentic’ indigenous law. Whereas ‘traditional’ civic-religious based authorities in the highlands are legitimized by the government as part of the ‘usos y costumbres’ recognized in the fourth article of the Constitution, autonomous authorities are persecuted, their members often imprisoned on charges of ‘usurpment of functions’ or ‘kidnapping’.

Clearly traditional authorities and practices are not defined by the temporality of their origin: rather than a descriptive term applied to some kind of ‘essence’, ‘tradition’ is an interpretative term used to refer to a process (Handler and Linnekin, 1984). Given that culture is constantly changing, conceptualizing something as ‘traditional’ affords it a specific symbolic value. As Linnekin states, ‘[c]ultural categories such as “tradition” have a reflexive character; we invent them as we live and think about them; people’s awareness of them as categories affects their meaning’. (Linnekin, 1982:250). In other words, ‘tradition’ is socially constructed. Placing these constructions within wider frameworks of power allows us to understand why certain inventions of ‘tradition’ are legitimized and others are not. (See Ulin, 1995). Yet ‘tradition’ is not only legitimized by the powerful. Some authors have analyzed how the past is re-invented in the historic memory of marginalized peoples in order to legitimize their present struggles and diminish the homogenizing power of colonial and post-colonial governments. (Price, 1983 and 1990; Rappaport, 1990.) Nonetheless, such readings are in danger of creating new dichotomies: the traditions invented by ‘dominators’ to help them maintain their power, counterpoised against the traditions invented by the ‘dominated’ in order to resist. Perhaps it is preferable to view tradition and custom as concepts born of a dialectic process of resistance and reproduction in which the state and the law have a productive capacity which enables the construction of certain identities, which in turn challenge the very definitions that gave them life.

In this way, autonomous Zapatista authorities reproduce hegemonic discourses, presenting themselves as the bearers of ‘millennial traditions’ and ‘ancestral customs’. Yet through this discourse they vindicate new forms of conflict resolution, which draw on elements of national and international law and reinvent new traditions in which women in particular have a more active role in community life. This process of normative synthesis and critical reflection was described by a member of Tierra y Libertad (Land and Liberty), one of the autonomous Zapatista authorities:

‘When cases of domestic violence came before us, we referred first to the civil

code and the penal code. [The cases] were interpreted according to national law,

and then compared with our revolutionary indigenous law. We would then

determine that national law wouldn’t be applied, because the law of the

government is almost invariably made against women rather than in their favor.

So we would set things straight, mainly by using the revolutionary law, which

speaks of the rights of women. In this way people’s knowledge was broadened,

they were shown how women have just as many rights as men’. 25
Despite such evidence attesting to the innovative capacity of the autonomous authorities to reinvent ‘customary law’, in their political discourse indigenous normative systems continue to be labeled as ancestral traditions. In this way the Zapatista movement continues to uphold the officially engendered dichotomy between national law and indigenous law, although they using it in furtherance of indigenous demands for self-determination. Evidently, although ‘custom’, as much as law, is a social construction that legitimizes certain relations of domination, in some contexts it can play the role of resisting dominant powers. Nonetheless, as the case of San Juan Chamula and other highland municipalities indicates, we should not conclude that ‘resistance’ is always an element of indigenous ‘custom’ per se.
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