ArticlePDF Available

The Globalization of Sympathetic Law and Its Consequences

Authors:
American Bar Foundation
The Globalization of Sympathetic Law and Its Consequences: [Commentary]
Author(s): Mark Goodale
Source:
Law & Social Inquiry,
Vol. 27, No. 3 (Summer, 2002), pp. 595-608
Published by: Blackwell Publishing on behalf of the American Bar Foundation
Stable URL: http://www.jstor.org/stable/829006
Accessed: 16/09/2010 08:54
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=black.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
Blackwell Publishing and American Bar Foundation are collaborating with JSTOR to digitize, preserve and
extend access to Law & Social Inquiry.
http://www.jstor.org
"FROM
THE TRENCHES
AND TOWERS"
COMMENTARY
The Globalization of Sympathetic
Law and Its Consequences Mark Goodale
Laura Nader
and Elisabetta
Grande's
timely and important
article asks
us, among other things, to consider both the intentions behind, and the
consequences
of, the "global
ADR revolution." These two aspects
of the
issue require
different
approaches.
The first is a demand to examine the
ideological underpinnings
of a legal worldview
that, at its source,
is con-
structed as counter-hegemonic,
or what I will call sympathetic.
That is, alter-
native dispute resolution and other similar doctrines are understood
by
those who embrace
them as not simply
alternative
and better
approaches
to
resolving
disputes,
although they, of course,
are thought
to have that func-
tion; rather,
ADR reflects a concrete
and sympathetic
response
to critiques
by the marginalized
of the dominant law's inaccessibility,
ineffectiveness,
and irrelevance.
By a process
of sympathy by analogy,
the plight before the
law of the marginalized
within, for example,
the United States-the poor,
the ignored
consumers,
the oppressed
ethnic groups-is thought
to approxi-
mate the legal dilemmas of the marginalized everywhere.
As Nader and
Grande
demonstrate,
in recent years
the regions
thought most in need of
sympathetic
law by concerned
institutions and governments
in the United
States and Western
Europe
have been areas
within the postcolonial
world
that are characterized
by a complex legal pluralism.
The second aspect of the global ADR revolution that Nader and
Grande ask us to consider is its consequences;
as they say, "any ADR
scheme needs careful
study
of the social conditions in which it ... oper-
ate[s]" (2002, 590). What exactly happens
at the local level when ADR is
Mark Goodale is Marjorie Shostak Lecturer in Anthropology, Department of
Anthropology, Emory University. He would like to thank Elizabeth Mertz for her close
reading of this commentary. Her suggestions allowed him to improve it considerably.
© 2002 American Bar Foundation.
0897-6546/02/2703-595$01.00 595
596 LAW & SOCIAL INQUIRY
introduced by nongovernmental organizations or international agencies, or
by national institutions working in concert with NGOs or the United Na-
tions? Or, to broaden the examination of sympathetic law: What is the ef-
fect on legal consciousness and identity when locals in rural Africa or Latin
America are told by representatives of prestigious and powerful agencies like
USAID that they have legal rights as humans,
or as women, and that these
rights, although perhaps not recognized locally, nevertheless exist and are
superior to local legal doctrines?
I will focus my response to Nader and Grande's article on the second
part, the consequences of the globalization of sympathetic law. Indeed, Na-
der and Grande have already effectively deconstructed the complex inten-
tions behind the global ADR revolution. In my opinion what is most
valuable is their penetrating analysis of the ideological nature of sympa-
thetic legalities like ADR. We need to acknowledge that their argument
will seem provocative to many, and for this reason in particular:
ADR and
other sympathetic law are understood implicitly by many who advocate
their use to be non-ideological
responses to the Hogarthian vices of hege-
monic state law. What Nader and Grande show us, however, is that ADR
carries
with it its own set of ideological "baggage,"
and that its impact at the
local level in many parts of the postcolonial world cannot be predicted.
Moreover, their argument perhaps leads to another conclusion that should
be noted: that legal paradigms
are never objective or context-less or univer-
sally valid. To recognize this is not to prevent us from seeking or advocating
more effective or democratic or emancipatory legalities, whatever we under-
stand these to mean. But it does indicate that in the absence of consensus
about doctrine, we should pay careful attention to consequences.
In the rest of this response, I will first develop somewhat more fully my
own position about the development and use of sympathetic law. Then I
will illustrate the usefulness of Nader and Grande's arguments through a
case study from one region in rural Latin America, an area that has been an
epicenter for the introduction of sympathetic law in recent years. I will de-
scribe what happened when NGOs and other institutions descended on ru-
ral villages during the 1990s intending to "develop" local populations
through the use of, among other things, human rights doctrines and literate
legal techniques. As this material shows, Nader and Grande's emphasis on
consequences is exactly right: In the case of rural Bolivia, the assertive im-
plementation by powerful outside institutions of nonlocal legal paradigms
disrupted local social and legal networks, which, at times, worked to the
detriment of precisely those groups that were expected to most benefit from
the new legal theories and practices.
Globalization of Sympathetic Law 597
I. SYMPATHETIC
LAW
By sympathetic
law I mean legal theories and practices that are under-
stood by concerned individuals and institutions in the United States and
Western Europe to serve humanitarian, social reformist, and counter-hege-
monic functions when introduced to, and used by, groups at the margins of
cultural, economic, and legal power. Sympathetic law is humanitarian in
that it is supposed to equitably advance the general welfare wherever it is
used, as opposed to dominant law, which is understood to serve the narrow
interests of elites. Sympathetic law is social reformist in that it is supposed
to have concrete and positive effects for those marginalized groups who use
it; this is contraposed to the abstract and ethereal impact of dominant law,
which claims to advance such indiscernible interests as "justice" and "the
good." Finally, sympathetic law is counter-hegemonic in that marginalized
groups are supposed to be able to use it as a tool of resistance, as a way to
strategically advance their interests in relation to embedded structures of
power. Now it is not possible to say in advance whether sympathetic law
will actually serve these functions in the diverse locations where it is intro-
duced and adopted; in specific cases, it might actually be humanitarian, so-
cial reformist, and counter-hegemonic. But as we learn from Nader and
Grande's article, we have reason to doubt that universal effects will natu-
rally flow from an intention to apply such legal theories and practices
universally.
An example of sympathetic law is the bundle of alternative dispute
resolution techniques represented by mediation, which as Nader and
Grande show, is believed by many ADR advocates to come closest to the
dispute resolution techniques used by the Noble Legal Savage in the state of
nature, where settling disputes, transmitting land, or establishing rights and
obligations was done in complete harmony with wider cultural logics, with-
out guile, and with the primary goal of preserving social bonds. And, to
complete the cycle, as Nader and Grande illustrate, ADR is now brought
"back"
and reintroduced to those societies in the Third and Fourth Worlds
that are deemed to be still nearest the state of nature, and from which dis-
pute resolution techniques like mediation are thought to be derived.
Another, somewhat different, kind of sympathetic law can be found in
the legal theories and practices embodied in Western human rights dis-
course. Human rights doctrines, as reflected today principally in United Na-
tions conventions and proclamations, are, of course, latter-day examples of
natural law, which applies to all peoples regardless
of cultural belief or posi-
tion. The positive law of a nation-state is "just"
to the extent that it accords
with the set of timeless and transcendent natural law propositions. Whether
they have their origin in divine law, secular humanism, or right reason,
human rights as a type of natural law serve as a clear standard against which
598 LAW & SOCIAL INQUIRY
the law of nations is judged. Nader and Grande might view this Western
import to be somewhat different from the other kinds of sympathetic law I
will discuss because it is frequently implemented in formal legal contexts in
contrast to, for example, alternative dispute resolution techniques. And, to
be sure, this difference is not insignificant. Yet, because human rights dis-
course is also an example of sympathetic law imported from the West, it
affords an interesting point of contrast and comparison.
A final example of sympathetic law is more subtle and difficult to rec-
ognize. Although the ideology of literate legality played an essential role
during the imposition of colonial law throughout the world, the techniques
associated with it-like written codification, archiving, and the privileging
of written, as opposed to oral, forms of evidence-are, like mediation, being
reintroduced among postcolonial societies as part of development strategies.
But unlike mediation, which is understood to reflect "traditional"
or indige-
nous legal practices, techniques of literate legality have been emphasized as
a way to finally use the master's tools to bring down the master's house.1
Nevertheless, as we will see below, as with other types of sympathetic law,
literate legality can be a Pandora's box for communities that have an elabo-
rated oral-legal tradition.
II. UNINTENDED CONSEQUENCES-A CASE STUDY
FROM RURAL BOLIVIA2
During the 1990s NGOs arrived in rural Bolivia in increasing numbers.
This was largely a coordinated international effort whose goal was the "de-
velopment" of regions in Bolivia that were ranked as "poorest"
according to
national and international criteria like infant mortality, life expectancy, and
literacy rates.3 International NGOs, working in conjunction with their na-
tional counterparts, descended on rural
Bolivian villages with plans to mod-
ernize life by introducing Western health practices, sanitary technology, and
most important for my purposes here, sympathetic law. What I describe be-
low are the consequences of this coordinated effort more generally, and
then the consequences of the introduction of sympathetic law in particular.
1. For more on the ideological nature of literate legality, see Clanchy 1979; Goodale
1998; Philips 1998; Ross 1998a, 1998b; and Thomas 1992, 1995.
2. The discussion in this and the following sections is based on 15 months of legal
ethnographic research conducted in Bolivia, which was made possible, in part, by funding
from the National Science Foundation Law and Social Science Program (SES #9807836). For
a full description of this project, see Goodale 2001.
3. The table (on page 599) lists of some of the more influential NGOs that were active
in rural Bolivia during the 1990s.
Globalization of Sympathetic Law 599
A. The Arrival of the NGOs
The effect on villages
in rural
Bolivia in which NGOs worked
during
the 1990s was immediate
and clear in the form of potable
water,
wash ba-
sins,
duchas solares
(solar
showers),
forestation
projects,
literacy
projects,
and
"work
for food"
projects.
But the villages
that the NGOs had not reached
were also affected
in two unintended
ways.
First,
throughout
the 1990s,
NGOs made
it clear
that the villages
that
were accessible
by road would
be the ones they would visit and enter into
negotiations
with. This meant that many
villages
that sat at the bottom of
deep river
valleys
were bypassed
by NGOs. Villages
that were inaccessible
for other topographic
reasons
were also left behind. In response,
villages
moved to the higher plateau
areas that could be reached
by various
roads
that traverse the deep Andean river
valleys. Typically
this process
involved
two villages from the same indigenous social structure,
called an ayllu,4
com-
bining themselves,
but only if the village at the higher
elevation agreed
to
the move. A formal
agreement
to combine
villages
was
very rarely
reached,
and many intervillage
conflicts arose
because of these tensions.
Sometimes
this process
was a gradual
one: Villages "crept"
up the side of hills higher
and higher toward
the road-accessible
plateau
region.
This process
was re-
flected in the birth of new villages
with alto
(or upper) placed
in front of the
name of the existing village.
Second, villages
that could not combine
with others within the same
ayllu,
or villages
that were in areas with no road-accessible
villages
nearby,
NGO Country Principal Activity
UNICEF United States Potable water until about 1992; then adult literacy
programs
(e.g., Yuyay
Jap'ina,
"to capture
knowledge")
PROINPA Holland Various potato projects
PROSEMPA Bolivia-Holland Various potato projects and forestation
PROCLADE Spain Forestation,
"human
development"
projects
FAO-Holanda Holland Forestation
PCI United States "Work
for food"
Mosoj Causay Belgium Potable water, "human
development"
projects
("new life")
Peace Corps United States Various projects
Caritas Suiza Switzerland Potable water
4. An ayllu is a macro-regional, fictive kinship unit that was probably created to deal
with the challenges of living in the extreme ecological zones in the Andes (Murra 1972,
1975). The ayllu has been the basic unit of Andean social organization since pre-Hispanic
times. Particularly in the north of Potosi Department (a department is the equivalent of a
U.S. state), where I conducted the major portion of my recent research, ayllus retain many of
their pre-Hispanic features, including "an internal organization based on dual and vertically-
organized segments, communal distribution of resources, and a 'vertical' land tenure system
which includes the use of non-contiguous puna (highland) and valley lands" (Rivera Cusican-
qui 1991; see also Platt 1982). The internal organization of ayllus can be conceptualized as a
set of nested boxes, with each territorial and kinship unit part of an ever larger set of ethnic
units that culminate in one grand unit, itself divided into two moieties, which relate to each
other as complementary opposites (Platt 1982, 5).
600 LAW
& SOCIAL
INQUIRY
even at higher elevations, began to die during the 1990s. A clear and poign-
ant example of this was the cantonal capital Iturata, tucked away in the
southeast corner of Alonso de Ibafiez, far from the provincial capital.5
Iturata was one of the oldest villages in the province and featured one of the
few sixteenth-century chapels in the province outside of the provincial cap-
ital itself. The closest point at which a road approached Iturata was about a
two-hour walk to the south along a major river. But this was too far from
Iturata to allow the village to build a connecting road, especially given the
fact that for six months of the year, during the rainy season, the road would
be impassable. Further,
the distance was too great to allow for "creeping,"
or
joining other villages closer to the road, even if the villages to the south of
Iturata had been in the same ayllu. The result was that during the 1990s,
Iturarta
became virtually a ghost town; during the time I conducted research
there in 1998 and 1999, only five people lived in the village, all of them too
elderly to follow their families, most of whom had migrated to major cities
like Oruro or Cochabamba.
Besides the impact on social infrastructure that NGOs have had in
villages where they were active, during recent years their presence has also
added a new and powerful variable to the changing power dynamics that
began in earnest with the growth of rural peasant unions in Bolivia in the
1950s. With the rise of these peasant unions, the position of ayllu legal and
political authorities was weakened considerably. But the presence of the
NGOs fueled this process by orders of magnitude. Almost from the begin-
ning of the 1990s, NGO officials found that the younger union authorities
generally spoke Spanish better and had more recent experience with urban
Bolivian life than ayllu authorities. For example, many young men had
served in the army, and some had also spent time in the Chapare region
working in the coca fields. Further, since union authorities tended to be
more receptive to recording legal information (see below on literate legal-
ity), NGO officials found it easier to work with them than with ayllu offi-
cials, who did not use recognizable forms of legal recording and, more
important, who were part of a social structure that was unintelligible to
them.
The result was twofold. First, positions that had previously been lower
in the local authority hierarchy, like union director, became more impor-
tant within villages. This did not mean, however, that older men, who were
associated with the more prestigious ayllu positions, began to move into
these positions; their lack of Spanish and inexperience with "modem ways"
prevented this. Second, other non-ayllu, non-union authority positions, the
so-called political positions-positions that were also formerly filled by
older, more respected men, and that were at least as important as the ayllu
5. Alonso de Ibafez, in the north of Bolivia's Potosi Department, was the region where I
conducted most of my research during 1998-99.
Globalization
of Sympathetic
Law 601
positions
even before
the 1950s-were being filled by younger
men as well.
This development
was even more dramatic than the increasing importance
of union directors,
because the political positions were important
in the
province
long before the peasant
unions and the arrival of NGOs. The fact
that 19- and 20-year-old
men were
filling these posts
because of the implicit
demands of foreign
and Bolivian
NGOs was one of the clearest
signs that
development activities of the 1990s had produced unintended
transformations.
B. The Introduction of Sympathetic Law
Although NGOs were not incorporating
mediation or other ADR
techniques
into their
development
strategies
in rural
Bolivia as of the 1990s,
they were using the two other closely related types of sympathetic
law I
have described above:
human
rights
doctrines and the techniques
of literate
legality. Significantly
different consequences
flowed from each of these
moves. In the case of the introduction
of human rights discourse,
rural
women
under
threat of domestic
violence were
able to invoke human
rights
to protect
themselves
and their children.
But the emphasis
on literate
legal
techniques
by NGOs led to an erosion in traditional
structures of power
through a devaluing of the local indigenous languages.
As Nader and
Grande
show so well, the global
ADR revolution is only one part
of a wider
process of globalization,
in which the extension of Western legalities
throughout
the world-particularly
in commercial and political
contexts-
is one important
component
in the larger project
of modernity.
Thus, an examination
of the consequences
of the use by NGOs and
other similar
institutions
of human rights
doctrines
and literate
legality
in
rural
Bolivia provides
an effective comparative
example, and also under-
scores the importance
of Nader and Grande's
suggestion
that we must un-
derstand the social implications of legal transplantation,
which are
independent
of the sympathetic
intentions that underlie
it. Moreover,
as
the following
discussion
demonstrates,
the social implications
of legal trans-
plantation
can be positive
as well as negative,
and that is why, as Nader
and
Grande emphasize, a careful contextual analysis of particular
cases is
necessary.
Human rights
discourse.
The impact of Western human rights discourse
during
the past 10 years
on local constructions of legality
and identity in
rural
Bolivia has been significant.
Beginning
in the late-1980s,
and continu-
ing through
the 1990s,
several
events in Bolivia
coincided
to form
the foun-
dation for this development.
First,
there was a national debate in Bolivia
during
the mid- to late-1980s over the upcoming
500 years
observations.
This debate was accompanied
by the formation of new indigenous-rights
602 LAW
& SOCIAL
INQUIRY
groups, and the strengthening of existing organizations with progressive or
radical tendencies, particularly the influential labor unions. The impact of
the new movement-framed now in terms of human rights and largely
united, something that is unusual for Bolivian social movements-was most
dramatically represented by the turbulent 1990 march by indigenous rights
groups from Trinidad to La Paz, an event that captivated the nation and
forced a national dialogue over the marchers'
demands, which were broad in
scope but linked to claims that "traditional"
authority structures should be
given legal effect at the national level, and rural lands should be protected
from the encroachment by large landowners and corporations, especially in
the Bolivian Amazon.
Probably the most striking and lasting effect of the resulting debates
over the march and related events was the widespread acceptance-even
among groups like the growing middle class, which had been traditionally
ambivalent6-of one of the debate's central premises: that there were dis-
tinct groups of Bolivians who should be defined as indigenous
Bolivians, and
that these groups had special rights as a result of this status. The working
definition of indigenous, and the rights that were felt by many people in
Bolivia to accompany this status, were not understood ambiguously or or-
ganically in most cases; rather, both were derived from specific international
charters or proclamations of relevant United Nations working bodies, like
the International Labor
Organization. The best example of this direct link is
Convention 169, a broad statement of principles created by the Interna-
tional Labor
Organization 1989. In 1991, Bolivia became one of the earliest
of only 14 countries to ratify the convention.7 Moreover, the package of
progressive reforms
developed by the Sanchez de Lozada
government during
the early and mid-1990s-especially "Popular
Participation"
and the Law of
Educational Reform-was a specific attempt to put the ideas of interna-
tional charters like Convention 169 into practice.
Second, as I have already described, the late-1980s and 1990s saw the
arrival of the NGOs. Although nongovernmental organizations like the
Rockefeller Foundation had turned their attention toward Latin America as
early as the Green Revolution of the 1960s, NGOs intent on helping local
populations "develop" did not turn their full attention toward rural Bolivia
until the late-1980s. Many of the most active NGOs in the region, espe-
cially in the mid- to late-1990s, consciously reformulated the approach of
earlier organizations in that they purported to adopt "indigenous knowl-
6. Other segments of Bolivian society-especially the army and the financial elite-
remained hostile to the upsurge in indigenous mobilization because of its obvious threat to
either social stability (for the army) or economic stability (for the moneyed classes).
7. The countries that have ratified Convention 169 as of 2000 are the following: Mexico
(1990), Norway (1990), Bolivia (1991), Colombia (1991), Costa Rica (1993), Paraguay
(1994), Peru (1994), Honduras (1995), Denmark (1996), Guatemala (1996), Ecuador (1998),
Fiji (1998), Netherlands (1998), and Argentina (2000) (www.ilo.ch).
Globalization of Sympathetic
Law 603
edge" regimes into their local planning strategies. This was indeed a striking
departure
from earlier waves of NGO activity, which were typically seen by
local people in the province as patronizing, unidirectional, and misguided.
Beginning in the mid-1990s, NGOs became more self-consciously collabo-
rative by hiring local leaders to participate in decision making over resource
allocation. Further, development activities were often preceded by initial
meetings between NGO workers and local leaders that were intended to
place the intentions of the organization within a specific human rights con-
text as defined in international charters.8
The arrival of NGOs to Alonso de Ibafiez
created a new and important
dynamic: the coupling of ideas that explicitly validated indigenous knowl-
edge and lifeways with a power structure that was clearly alternative and
superior to the government in terms of technological sophistication and ac-
cess to resources. The arrival of NGOs gave people in the villages a way to
bypass traditional networks of power and political influence through the use
of human rights doctrines as a way to shield themselves from the impact of
state law. But the NGOs also contributed to something of a shift in
worldview among villages that interacted with them. Local people, espe-
cially local intellectuals who worked closely with the NGOs, came to view
themselves within a much different context, one that contrasted sharply
from what came before. Before, they had held a model of the world reflected
in a national social hierarchy that was seen to be permanent and that ex-
isted to their clear disadvantage. Now, by contrast, they viewed the world as
one in which indigenous peoples had rights as indigenous
peoples,
rights that
were validated by prestigious international organizations and bodies of law.
But the most concrete example I can offer regarding the impact of
human rights discourse in rural Bolivia was the Servicio
Legal Integral
(SLI,
or Center) that operated in Alonso de Ibafiez between 1995 and 1998. The
SLI, which was designed to introduce human rights in rural Bolivia, was
authorized by the Ministerio de Desarrollo Humano, Subsecretarfa
de Asun-
tos de Genero (SAG).9 Its goal was the protection of women's and chil-
8. I was present at several of these initial "context-building" meetings. Most of the offi-
cial descriptions by NGO leaders were simply versions of relevant portions of international
human rights charters, for example ILO 169, article 7, section 1, which reads: "1. The peoples
concerned shall have the right to decide their own priorities for the process of development as
it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or
otherwise use, and to exercise control, to the extent possible, over their own economic, social
and cultural development. In addition, they shall participate in the formulation, implementa-
tion and evaluation of plans and programmes for national and regional development which
may affect them directly."
9. Law 1493 (17 September 1993), a law passed through Bolivia's executive branch,
created the Ministry of Human Development. Article 71, no. 5 of Supreme Decree 23660 (12
October 1993) created the National Secretariat for Ethnic and Gender Issues. Articles 85, 86,
and 87 of this same supreme decree created the Subsecretariat for Gender Issues responsible
for all political matters related to women. The Ministry of Human Development, in Resolu-
tion 139/94 (21 September 1994), adopted the National Plan for the Eradication, Prevention,
and Punishment of Violence against Women. Article 1 of this resolution created the system
604 LAW & SOCIAL
INQUIRY
dren's rights as defined by international human rights doctrines. The
Claretian Church in Alonso de Ibafiez, which is run by Basques from Spain
and which receives funding and support from the European Union, made
the formal application to La Paz. When the approval was given, they were
designated as the managing agency. They also provided initial funding for
the Center, along with UNICEF. While it was open, it had a staff of two:
Lucio Montesinos, the only titled lawyer in the province, who served as
director and lawyer, and an assistant, who moved to the province from La
Paz. She was a young university graduate in forestry who had an interest in
human rights and in particular the rights of women and children. She had
many duties at the Center-which was located in a two-story house in the
provincial capital's plaza-including processing new arrivals, giving advice
and counseling to women who decided to stay at the Center, and in general,
serving as a house mother to the group that was living at the Center at any
one time. She was also responsible for maintaining legal records related to
the Center's activities.
Montesinos worked with the assistant during interviews of new arriv-
als. He was responsible for all legal functions of the Center including giving
legal advice to women who came to the Center for help, making decisions
regarding the validity of cases at intake interviews, planning legal strategies
for cases that were deemed worthy of prosecution, and finally, prosecuting
cases in the local state law court system. As preparation for this new role,
Montesinos had traveled to La Paz to receive extensive training in human
rights and family law. The Center only handled cases that fell within the
Center's mandate; normal criminal or civil cases were not processed. Besides
serving as a legal resources center for women and children in the province,
however, the SLI was also a refuge for women who were fleeing from abu-
sive home environments. Over the course of three years, women arrived at
the Center in large numbers from the more than 100 villages spread
throughout the province.
But apart from its practical impact, the presence of the Center led to
fundamental changes in local legal consciousness and identity. Women in
the province had certainly never considered the fact that they might have
formally recognized legal rights as women, not to mention the possibility
that a state-sanctioned entity existed to safeguard
these rights. Beginning in
the 1970s, women in many of Bolivia's mining centers became politically
active within the context of the growing international women's movement
(see Barrrios de Chungara 1978), but this movement never appeared to
have an impact in Alonso de Ibafiez. Traditionally, women have been
of Servicios
Legales
Integrales
to carry out the resolution's objectives. Law 1674 (1995), passed
by the Bolivian congress, outlined the nature and function of the SLIs and authorized their
establishment. In practice, SLIs can only be established after a formal application is made on
behalf of a municipality with the assurance that supplemental funding will be provided.
Globalization
of Sympathetic
Law 605
largely excluded from taking active, official political or legal roles (see
n.10). This is not to say that women do not exert influence unofficially, or
that they are not active legal actors; but the lack of formal opportunities to
serve in authority positions has meant that women have not had the same
exposure to wider political and legal ideas as men have, particularly men
who travel outside the province as part of union activities.
Thus, the sudden appearance of the SLI in Alonso de Ibafez in 1995
was a dramatic and singular event for people in the province. Besides its
legal functions, the Center allowed women and their children to, in effect,
live permanently there; part of the Center's funding included a subsidy for
food services, which were contracted out to an adjacent family, which
cooked for the women living at the Center. No time limits were imposed on
women and their children; the only restriction was that there had to be beds
for every adult. The maximum capacity was 70 women, and the Center
quickly filled up. It turned out that some of the women who stayed the
longest were the ones who had arrived the earliest; many stayed for more
than six months while their cases were processed in the local court. But
many women stayed at the Center even without actively pursuing their
cases; while women often misunderstood the legal aspects of their situations,
the fact that they could live in the provincial capital away from abusive
husbands or boyfriends meant that the Center's role became more complex
than first envisioned.
As can be seen, the Center had a positive effect for women in the
province even as it altered local gender relations in unpredictable ways.
This result supports Nader and Grande's position that dispute resolution
procedures that involve an appeal to international legal principles, even
short of actually using formal tribunals, can be effective for marginalized
people in certain contexts. Nevertheless, and this is a major complicating
factor, the absence of a formal arena will usually mean that the invocation
of human rights discourse by the marginalized will be fraught with uncer-
tainties. This is because the informal resort to human rights doctrines in
social contexts is made more effective by at least the presence of an availa-
ble legal forum that recognizes the legitimacy of such doctrines.
Literate
legality. The use of literate legal techniques by villages in re-
sponse to demands by NGOs and other international agencies is my final
example of the consequences of the globalization of sympathetic law. In
Alonso de Ibanez, archives are not maintained by villages, but rather by
men with political and legal authority.10
Decisions regarding archives de-
10. I use men here deliberately. Even though women are not prohibited from serving in
authority positions in rural Bolivia, it almost never happens. In 15 months I only found one
woman serving as an authority. She was middle aged and had never married, so she lived in
the village of her birth family (the villages are patrilocal, meaning men and women live in the
husband's village after marriage). One effect of this normal postmarital residence pattern is
606 LAW & SOCIAL
INQUIRY
pend on individuals and their knowledge
of legal/organizational
procedures
and their abilities with reading
and writing.
The archives
themselves
are in
most cases called cuadernos
de actas
(records
or proceedings),
and they con-
tain information that reflects both political
and legal
processes.
These note-
books are used to record two types of events for the most part:
meetings
between members
of rural unions and the resolution
of disputes
between
members of the hamlets. This second
type of record,
which is a new type of
entry for villages,
contains information
regarding
the facts of disputes
and
their eventual
resolution.
As the structures
of power
in the province undergo
transformation
for
the reasons
I have already
described,
so too does the practice
of maintaining
archives.
Although archives
were used
before the appearance
of the NGOs
during
the 1990s,
their use and
purpose
have changed
considerably.
There is
a trend toward
greater
documentation
primarily
because
most NGOs work-
ing in the region
require village authorities
to create
lists of the number of
families in the hamlet,
distance
from
Sacaca,
types
of crops
grown,
number
of cultivated
fields, and, most important, records
of existing disputes.
To
take one example,
Project
Concern International
(PCI), a USAID-funded
project
staffed
by ex-Peace Corps members
willing to perform
short-time
"emergency"
service,
provides
hamlets with food in exchange for "self-de-
velopment"
work,
which usually
takes
the form
of road
improvement.
But before PCI will give sacks of food, they demand
that the village
authorities
carefully
document
and describe
the legal rights
created
during
all negotiations
between
PCI representatives
and village authorities,
as well
as the number
of hours
worked
by each man and the number
of men in-
volved in the work;
oral
reports
will not suffice.
Besides
altering
the nature
of legal recording
in the hamlets,
this NGO pressure
has shifted social
pres-
tige to younger,
more literate
men, those who can comfortably
interact
with
outsiders
in spoken
Spanish
and who, more important,
can learn the con-
ventions of Spanish
legal literacy.
The older
men, who hold the traditional
ayllu
authority positions,
and
who are
higher
in rank
in the authority
hierar-
chy, are
often simply
ignored
by NGO workers,
many
of whom
do not speak
Quechua
and who do not understand
the internal
political
and legal struc-
tures
of power.
Thus, the insistent carrot-and-stick
approach
by NGOs to
literate
legality-making the provision
of food contingent
on the expansion
and novel uses of legal archives-has, among other things, inverted the
traditional
social hierarchy
in some villages
in rural
Bolivia.
As these two examples
indicate, the effects of the implementation
of
sympathetic
law are highly contextual
and require
careful
examination.
In
one context-gender relations-the appeal to human rights discourse
through
the Center undermined
traditional
gender
relations
in ways that
that married women are less likely to exert political and legal influence because they live in
the villages of their husbands' families.
Globalization of Sympathetic
Law 607
allowed women to advance their interests in positive ways, as Nader and
Grande predict. In the other context-the move toward literate legality-
the undermining of traditional structures
of political power seems to be has-
tening the demise of indigenous languages and privileging people who are
distinguished primarily by their swift embrace of the trappings of modernity.
CONCLUSION
Nader and Grande do not discuss whether, when accompanied by a
"careful study of social conditions," sympathetic legalities like ADR might
prove to be superior legal options for people given a choice between hege-
monic, preexisting state law and these alternatives. It is, for example, very
difficult to say for certain that a rights-based forum will always prove more
effective for marginalized claimants than the interest-based methods of
ADR, or whether the informal invocation of formal law principles such as
human rights discourse might in some cases by itself bring about positive
social change. In my experience, peasant farmers in rural
Bolivia prove quite
adept at using the variety of legal forums at their disposal in order to strate-
gically advance their interests. On occasion, depending on the (usually po-
litical) circumstances, parties will opt for the local state law court; at other
times, they choose to remain in their villages in order to have the dispute
mediated. And, indeed, therein lies the crux of the dilemma: It is impossible
to know in advance what the consequences for people will be who find
themselves at the receiving end of the global ADR revolution.
The research narrative from rural Bolivia, in which I examined devel-
opments similar to the trend toward the imposition of ADR, indicates that
the results there would be mixed. Although the long-term impact on gender
relations is difficult to assess, it is easy to see-at least in the short term-
that hundreds of women felt empowered in ways that had not been possible
before. With the case of the insistence on literate legal techniques by
NGOs, the results are much clearer. The system of traditional authority
positions has been further damaged because of the sudden ascendance of a
class of young and inexperienced men who are able to adopt the conven-
tions of literate legality much easier than can older, more respected men.
While this development might seem emancipatory to a certain extent, the
deeper consequences are serious. The older men who occupy the ayllu au-
thority positions are the traditional representatives of their villages in deal-
ings with the province and the Bolivian nation-state. Indeed, their primary
role has been to protect local interests, and they have needed all the bene-
fits that experience brings to do this. Thus, now that the youngest adult
men in villages are seen in the eyes of NGOs and, increasingly, the Bolivian
state to be the real intermediaries, village interests will likely not be repre-
sented as effectively.
608 LAW
& SOCIAL
INQUIRY
In any case, what Nader and Grande teach us above all is that we
cannot always trust our best instincts when thinking about, or implement-
ing, legal theories and practices that claim to lead to humanitarian, social
reformist, or counter-hegemonic results. Instead, we must anchor our claims
in careful analysis of messy, everyday law-in-action, as it unfolds in the le-
gally plural postcolonial world, and elsewhere.
REFERENCES
Barrios de Chungara,
Domitila. 1978. Let Me Speak!
Testimony
of Domitila,
A Woman
of
the Bolivian Mines. New York:
Monthly Review Press.
Clanchy, M. T. 1979. From Memory
to Written Record:
England
1066-1307. London:
Edward Arnold.
Goodale, Mark. 1998. Literate Legality and Oral Legality Reconsidered. Current
Legal
Theory
16(1):3-21.
. 2001. A Complex Legal Universe in Motion: Rights, Obligations, and Rural-
Legal Intellectuality in the Bolivian Andes. Ph.D. diss., University of Wisconsin,
Madison.
Murra, John. 1972. El "control vertical" de un maximo de pisos ecologicos en la
economia de las sociedades
andinas [The "Vertical Control" of a maximum Number
of Ecological
Levels in the Economy
of Andean Societies]. In Visita de la provincia
de
Leon Huanuco
en 1562, Inigo
Ortiz
de Zuniga,
visitador,
ed. J. Murra.
Huanuco. Peru:
Universidad
Nacional Hermillo Valdizan.
. 1975. Formaciones economicas
y politicas
del mundo andino
[Economic
and Politi-
cal Formations
in the Andean World]. Lima, Peru: Instituto de Estudios
Peruanos.
Nader, Laura,
and Elisabetta
Grande. 2002. Current
Illusions and Delusions about Con-
flict Management-In Africa and Elsewhere.
Law and Social
Inquiry
27(3):573-594.
Philips, Susan. 1998. Intertextual Relations between Written and Spoken Genres of
Law.
In Ideology
in the
Language
of Judges:
How
Judges
Practice
Law.
Oxford,
England:
Oxford University Press.
Platt, Tristan. 1982. Estado
boliviano
y ayllu andino: Tierra
y tributo
en el norte de Potosi
[The Bolivian State and the Andean Ayllu: Land and Tribute in the North of
Potosi]. Lima, Peru:
Instituto de Estudios
Peruanos.
Rivera Cusicanqui, Silvia. 1991. Liberal Democracy and Ayllu Democracy in Bolivia:
The Case of Northern Potosi. Journal
of Development
Studies
26(4):97-121.
Ross, Richard. 1998a. The Memorial
Culture of Early
Modem English
Lawyers:
Memory
as Keyword,
Shelter, and Identity, 1560-1640. Yale
Journal
of Law and the
Humani-
ties 10:229-326.
. 1998b. The Commoning of the Common Law: The Renaissance Debate over
Printing English Law, 1520-1640. University of Pennsylvania Law Review
146(2):323-461.
Thomas, Rosalind. 1992. Literacy
and Orality
in Ancient Greece. Cambridge,
England:
Cambridge
University Press.
. 1995. Written in Stone? Liberty, Equality,
Orality,
and the Codification of Law.
Bulletin
of International
Classical
Studies
1995:59-74.
... In employing the idea that liberal legalities pacify populations within empires of law, I am obviously drawing from the work of Laura Nader (2002) on the pacifying ideologies of ADR in the service of dominant economic interests. Yet while following Nader's recent work on this important topic -subject to certain qualifications -see Goodale (2002). I actually think that Nader does not go far enough; in other words, her theory of legal pacification can be extended even further. ...
Article
Full-text available
This article explores the idea that law has become newly constitutive in a postmodern transnational system in which modernity's classic polarities have become obscured, the discipline of late capitalism has become widely if partially internalized outside of institutional domains, liberalism's foot soldiers (rights, citizenship, nation statism, 'free' markets) have gained new forward momentum despite a period of supposed ideological hybridity described by that overheated but ill-theorized concept 'globalization', and, finally, most arguments for socialist/egalitarian revolution or system transformation must now be seen as anachronisms. The article locates these processes as essential features of a particular disciplinary regime in which the grandeur of liberal legality is used to create loyalty to the wider project of liberalism within the consolidation of late capitalism. These regimes are called 'empires of law', and the theoretical framework within which empires of law are rendered intelligible as actual sociolegal phenomena draws from, but critically reframes, insights found in Hardt and Negri's book Empire (2000).
... Moreover, states in Latin America had every reason to deny the existence of legal pluralism within their borders; to do otherwise would mean to acknowledge a basic weakness in national sovereignty, which depends, among other things, on internal legal hegemony. But the difficulties with understanding legal pluralism in Latin America become compounded because those who have a stake in alternative legal structures -often rural people living at the margins of national legal consciousness -likewise have every reason to deny the existence of what is for them often the "real" law, a law that serves not only to resolve their conflicts, establish and reaffirm their rights and obligations, etc., but also serves as a potent symbol of community resistance to state power (see Goodale 2002aGoodale , 2002bGoodale , 2008Rappaport 1994;Santos 1995). ...
Chapter
Full-text available
Anthropological study of law in Latin America; legalities and illegalities; networks of law; influential ethnographic descriptions of legal pluralism; subaltern politics in new register - rights mobilization and coming of rights NGOS; legal ethnography in unstable places; social practice of law in Latin America
... These are legalities that are formally understood and constituted as humanitarian, social reformist, and counterhegemonic, yet become disciplinary when appropriated by transnational corporate capital and its nongovernmental proxies(Goodale 2002).8 See alsoAvruch and Black's (1996) important study of the exportation of ADR to countries in the Pacific, which Nader also draws upon.This content downloaded from 130.223.2.25 on Fri, 21 Oct 2016 08:46:24 UTC All use subject to http://about.jstor.org/terms ...
Article
Full-text available
The opportunity to fulfill the rights to work for persons with disabilities has been increasing since the ratification of Convention on the Rights of Persons with Disabilities (CRPD). Indonesia has adopted a "quota scheme" through the Law Number 8 of 2016 on Persons with Disabilities where government institution has set a minimum quantity of two percent as the number of workers for persons with disabilities as affirmative action targeted at promoting human rights. This article examines the progress of the legal framework for persons with disabilities by using a case study in civil cervants in the public sector. We argue that despite Indonesia's disability legal regime has pushed the social model of disabilities that promotes human rights-based approach, its implementation is still based on the medical model of disability, in which it sees persons with disabilities on physical condition, and thus, they are assumed to be able to work in a certain field determined by the government. This article argues that affirmative policy does not provide equal opportunities to persons with disabilities as the special formation and medical requirements prevent them from applying for occupations that match their interests and educational background. The use of the medical model of disability in providing employment opportunities in the public sector prevents the level of participation and the formation of an inclusive workplace environment.
Chapter
This chapter argues that practice theory draws our attention to the fact that ideas, even normatively potent ones, derive their social power from the manner in which they are embedded in social relations, embodied and embrained by social actors, and inthinged in social technologies and artefacts. As a consequence, practice theory provides a fruitful approach to sociologically thickening conceptions of human rights. Reviewing a number of sociological contributions, López discusses the explanatory potential and pitfalls associated with mobilizing practice theory to do so. Drawing on the work of Fuyuki Kurasawa and Kate Nash, he argues that human rights can be understood as a political imaginary where ethico-political practice is geared towards making receivable the normative claims of distant and/or excluded others in an imagined ethical and political community.
Book
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as "learning to think like a lawyer". This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system-which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.
Article
Anthropology is uniquely positioned to open a new dimension of critical human rights discourse based on engaging indigenous rights. Moving toward a critical anthropology of human rights begins from the UN Declaration on the Rights of Indigenous Peoples. The charge that this document reifies 'indigenous' and 'rights' is examined in light of reifications such as 'primitive' and 'tribe', referencing Eric Wolf's assertion that cultures, societies and nations should not be treated as if they were bounded 'billiard balls'. In reframing rights, Marx's (1844) and others' insights on human collectivity are useful. This reframing perforce questions the ipso facto legitimacy of nation-statism. © The Author(s) 2014 Reprints and permissions: sagepub.co.uk/ journalsPermissions.nav.
Article
Full-text available
This article represents a search for a different analytical language through which anthropology can engage with human rights. This effort is intended to contribute to what is an expanding range of ways in which anthropologists conceptualize, advocate for, and critique contemporary human rights. Its central argument is that current ethnographic studies of human rights practices can be used as the basis for making innovative claims within human rights debates that take place outside of anthropology itself. To do this, ethnographic description that captures the contradictions and contingencies at the heart of human rights practices is not enough. What is needed is a different understanding of how the idea of human rights comes to be formed in context. In this article, I suggest several possible ways that an anthropological philosophy of human rights can accomplish this. I conclude by locating this approach in relation to a longer history of anthropological skepticism toward universalist discourses.
Article
Critics of Owen Fiss's famous 1984 Against Settlement widely assumed that he indicted alternative dispute resolution (ADR) as intrinsically incapable of promoting public values. This essay, however, suggests that Fiss offered a socially and historically contingent prediction about ADR’s potential to undermine popular commitments to redistributive justice during a period of intense economic liberalization in the United States. To support this rereading, the essay considers how Fiss envisioned the promotion of public values in a different space and time — specifically in international contexts at the turn of this century. Here, he endorsed decentralized, deliberative, and extrajudicial processes, even if he did not quite endorse ADR. The standard reading of Against Settlement suggests that Fiss believed that the simple alteration of institutions (from adjudication to ADR) could change our political possibilities in fundamental ways. But once we characterize Fiss's polemic for adjudication and against settlement as, more broadly, an argument for a particular kind of public morality and against an overarching market rationality currently espoused by neoliberalism, then the choice between competing institutional forms becomes less determinate, and - this essay argues - Fiss's overarching challenge to the field of dispute resolution becomes more irresolvable and enduring.
Article
Full-text available
This paper provides a critical perspective on the use of U. S. alternative dispute resolution (ADR) approaches for managing conflict in African and other communities. It argues that imposition of American ADR as a condition for foreign aid or capital investment is deeply problematic, and urges a more sophisticated analysis of the power dimensions and ideological basis of ADR. When viewed as an ideologically laden paradigm for how conflict should be resolved (i. e., a conflict paradigm), ADR can be seen as carrying troubling baggage. For example, ADR approaches imported from the United States deal with dispute resolution simply in terms of mechanisms or techniques, ignoring substantive issues central to conflict management in African and other communities. The entire discourse surrounding ADR pays insuficient attention to problems with terms such as modern or traditional, and encourages an ingenuous denial of the effects of inequality in power and money on conflict resolution. This ideological baggage renders unreflective imposition of ADR incompatible with the best interests of African communities. The authors urge a more complete and objective analysis of the global ADR revolution-one that takes a broader perspective.
Article
Economic and political reforms imposed on Bolivian indigenous communities (ayllus) in the name of modernisation and democracy have actually furthered long‐standing colonial forms of oppression. Both liberal reformers and nationalist revolutionaries promoted a concept of citizenship which displaced and undermined indigenous social organisation and political practice. Even in the 1980s, progressive and leftist parties, unions, and development organisations continued to marginalise the democratic internal life of the northern Potosí ayllus.