November, 1999] Page
National Science Foundation Doctoral Dissertation Research Improvement Grant
Mark Ryan Goodale
Indigenous Legality in the Bolivian Andes
This project proposes
indigenous culture situated within macro-regional kinship networks, studying
which local people create, re-create,
operationalize legal meanings
disputes over land
Bolivia—and observing on-going legal processes
they unfold—this project will make
two important levels.
level, this project will
local legal functioning
extraordinary regional kinship structures.
this sense this project stands
in Andean anthropology.
on law as a
porous "interlegality," this project seeks
to be one of the
in 1994, the
non-national, indigenous legal traditions.
has not yet
been implemented through specific legislation. Although
one national conference
concrete steps have emerged.
fact that studies
local legal traditions
exist. Large segments
the rural population
areas with minimal penetration
structures, including legal structures. Although scholars
many years noted
Andes settle disputes, transmit land,
various sorts through systems
primarily derived from
the national legal systems, studies that problematize local legality
fact that this project's significance
much greater than being the first description and elucidation
Bolivia indigenous lifeways have traditionally been accorded
national elite, local, indigenous structures
invariably embody less power vis-a-vis their national counterparts.
interaction between indigenous
site where power differentials
directed toward local
legal traditions because
national legal system
local systems will necessarily increase
same time manifesting
prestige that Article
facilitates. This project will
this structural meeting. What
that this project will inform
which essential meanings
the often turbulent clash
(semi-) autonomous legal traditions.
Page 140 [PoLAR: Vol. 22, No. 2
Recent Currents in Legal Anthropology
The publication of Nader and Todd's 1978 edited volume, The Disputing Process: Law In Ten
Societies, can be seen as a crucial moment in legal anthropology—the subdiscipline had now
officially re-structured its priorities from focusing on the outcomes of discrete legal systems
to viewing law as
process fundamentally embedded in wider social networks. Implied in this
was the notion that the goal of this legal process was to maintain long-term order and stability
(Just 1992). This move away from systemic output was crucial because it established the type
of flexibility and interpretive power that prior legal anthropology failed to provide. This
largely unified theoretical focus informed research projects in legal anthropology for the next
decade (see, e.g., Chanock 1985; Comaroff and Roberts 1981; Dennis 1987; Gulliver 1979;
Leons 1984; Moore 1986; Rose 1988; Rosen 1984, 1989; Sugarman 1983; Westermark 1986;
By 1989, however, there was a recognition that there had been important additions to this law-
as-social process framework. This recognition was signaled again, by the publication of a
major edited volume containing research pieces by many of the most prominent legal anthro-
pologists. Starr and Collier's History and Power in the Study of Law: New Directions in Legal
Anthropology (1989), as the title suggests, shows the extent to which legal anthropology had
incorporated the critique of the mid-1980s, particularly the notions that theory must be
constructed within a framework that was essentially diachronic, and embedded in social
relations of power. This new focus was seen by the contributors as an addition to the work of
The Disputing Process; while a heightened awareness of history and power in legality
provided "new directions" indeed, the essential research focus was still on dispute processes.
In the mid-1990s, the postmodern critique that led to the Starr and Collier volume had become
more sophisticated and diverse in legal anthropology. Although the focus was (and is) still on
viewing legality as a historically-grounded social process, impacted by wider power
discourses, the focus acquired ever-increasing degrees of subtlety (see, e.g.. Coombe 1991;
Coutin 1993; Hirsch 1994; Merry 1990; Mertz 1994; Yngvesson 1993). The most important of
these recent refinements comes in the form of another edited volume by prominent legal
anthropologists—Lazaru.s-Black and Hirsch's Contested States: Law, Hegemony and
In the Introduction to Contested States, which John Comaroff (1994: x) calls "the future of
legal anthropology," he identifies three main "lessons" which this subtle paradigm shift
imparts. First, the process of construction and contestation that characterizes the perennial site
of legal struggle /,v the meaning, not a rupture in the "order of things." Second, the centrality
of the culture of legality in the scaffolding of the modern nation-state is given new precedence
(this point is particularly salient for Latin America). Last, "(t]o the degree that law appears to
be imbricated in the empowered construction of reality, it also presents itself as the ground on
which to unravel the workings of power, [and] to disable and reconstruct received realities"
Further, legality comes to be conceptualized as "not only practice and [historically-situated]
process, but also discourse, code, and communication" (Lazarus-Black and Hirsch 1994: 5).
No longer is order seen as an inevitable or even desirable result of legal processes; rather,
"contestability" and discord are accepted as not only normal components of legal meaning-
structures, but essential components as well. Finally, this work highlights a move toward
November, 1999] Page 141
conceptualizing legality in terms of the discursive fields that constitute legal identities and
legal relationships (1994: 6).
For my own project, this last development squares most clearly with how I seek to conceptu-
alize the construction of legal meaning in Sacaca. In the Andes generally the creation of legal
meaning is and has been an essentially discursive process, one that depends fundamentally on
the creation, maintenance, and manipulation of local "codes of communication" (Rappaport
Further, it is apparent that legality in the Andes has been, since the colonial era. marked
by intrinsic "contestability" (see generally Leons 1984; Malagon-Barcelo 1961: Rappaport
Stern 1982). A recognition of this—and a concurrent move away from order as an object
of study—is quite useful, and indeed liberating to a certain extent, because it frees one to frame
omnipresent struggle as a normal part of local existence, not something necessarily indicative
of indigenous anomie.
Sousa Santos' recent work is interesting and provocative (1987. 1995). His concept of "post-
modern law," which in many respects builds on Moore's concept of the "semi-autonomous
1978), bears significantly on how my project approaches legality in
Sacaca. His statement of this notion is worth quoting in full:
Legal pluralism is the key concept in a post-modern view of law. Not the legal
pluralism of traditional legal anthropology in which the different legal orders
are conceived as separate entities coexisting in the same political space, but
rather the conception of different legal spaces superposed
and mixed in our minds as much as in our actions, in occasions or qualitative
leaps or sweeping crises in our life trajectories as well as the dull routine of
eventless everyday life. We live in a time of porous legality or of legal porosity
of multiple networks of legal orders forcing us to constant transitions and
trespassings. Our legal life is constituted by an intersection of different legal
orders, that is by interlegality. Interlegality is the phenomenological counterpart
of legal pluralism and that is why it is the second concept of a post-modern
conception of law. Interlegality is a highly dynamic process because the
different legal spaces are non-synchronic and thus result in uneven and unstable
mixings of legal codes (1987: 293-94).
However, my project's theoretical orientation differs from these developments in one ver\
important sense. While my project will seek to understand how local legality in Sacaca utilizes
codes of communication as part of more general discursive practice, views legality as essen
tially historical, and sees local legality as bound up in networks of "interlegality" which are
fundamentally porous, it does so by privileging local legality as a coherent, primary intel-
lectual system. By this I mean first that local legality is a process that creates specific meaning
that is not ad hoc, but deliberate, intended, and strategic. And second, local legality is not
merely a residual phenomenon, existing as a subsidiary branch of national legality, but rather
is a primary intellectual system interacting with national legality as part of a porous, dynamic,
Key components of this research proposal reflect 3 months of preliminary research and
language training in Bolivia during the summer of 1996. During this recent period, I studied
advanced Bolivian Quechua in Cochabamba, Bolivia at the University of San Simon with the
Page 142 [PoLAR: Vol. 22, No. 2
support of a Title VI Foreign Language and Areas Studies Grant. With the support of a
Tinker/Nave Foundation Short-Term Research Grant I was able to contact Bolivian scholars,
survey the area of Sacaca, and spend periods of time in residence at relevant institutions.
In the course of this process I made professional and personal contacts with people who will
be significant for my research. The prominent Bolivian social scientist, Professor Xavier Albo
of the Centro de Investigacion y Promocion del Campesinado (C.I.PC.A.) in La Paz, has given
me advice concerning my project, and has agreed to support it theoretically and in any other
way he can in the future. Dr. Roberto La Serna, the Director of the Centro de Estudios de la
Realidad Economica y Social (C.E.R.E.S.) in Cochabamba, an influential social science
research center in Bolivia, has also given my project his support, and has said that the
resources of C.E.R.E.S. will be at my disposal for the duration of my research in Bolivia.
In the Sacaca region, I have received the support of two influential people (from the national
perspective): Dr. Cesar Ayaviri, a lawyer who is the President of the Council of Agrarian
Reform for the Province of Ibanez, and Mr. Hernan Ledezma, who has recently been elected
the Sub-prefect of Sacaca for a term of four years. Mr. Ledezma and I have formed a personal
relationship during the preliminary research trip to Sacaca in 1996. He has committed himself
to serving as an initial liaison between local and regional ayllu authorities and me once I return
for my formal research period. This initial, formal period of introduction is a requirement for
establishing cross-cultural rapport and, as important, the legitimacy of my project with local
I intend to spend 12 months conducting research in the region in and around Sacaca, Bolivia.
Sacaca is the provincial capital of Alonso de Ibanez, approximately 7-9 hours (depending on
the season) east of Oruro in the north of Potosi Department. Alonso de Ibanez is the most
western province in Potosi Department. The entire province has a population of approximately
24,000 people, with nearly 0% change in absolute population numbers over the last 20 years
(Repiiblica de Bolivia 1990). The majority of the population lives in sparsely settled housing
settlements over a 70 square kilometer area. This location in the Bolivian Andes is near the
point where the distance between the two Cordilleras, or subordinate mountain ranges, is the
greatest. Because of this, the region has more the appearance of a high desert and does not
feature the snow-capped peaks to be found in Peru and parts of Ecuador. There is a distinct wet
season in the spring in which the altiplano comes alive with the vibrant colors of flowering
Sacaca and Ethnic configurations—ayllus
Parallel to the national Bolivian administrative structures, which minimally penetrate this
region of the Bolivian altiplano, Sacaca and the north of Potosi are governed by ethnic
political and legal entities known as ayllus. The ayllu has been the basic unit of Andean social
organization from prehispanic times. Particularly in the north of Potosi, ayllus retain many
prehispanic 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
Cusicanqui 1991; see also Platt 1982). The internal organization of ayllus in the north of Potosf
can be conceptualized as a set of "Chinese boxes," with each territorial and kinship unit part
of an ever larger set of ethnic units, which culminate in one grand unit, itself divided into two
November, 1999] Page 143
moieties, which relate to each other as complementary opposites (Platt 1982: 5).
Following Plan's schema, the smallest unit in northern Potosi ayllus i.s the ayllu minimo, or
minimal ayllu; locally known as a cabildo or jatun rancho. Each minimal ayllu contains one
independent hamlet, which may or may not have subordinated smaller hamlets attached to it.
These smaller hamlets are known as juch'uy ranchos and fall within the jurisdiction of an
ethnic authority known as a Jilanqu, depending on whether or not the maximal ayllu has the
intermediate level called ayllu menor, or minor ayllu. As Rivera Cusicanqui describes the
relationship between the minimal ayllus and the subordinated units, ox juch'uy ranchos, the
"internal hierarchy. . . is determined by the existence of a system of mantas (communal lands
subject to coordinated cycles of rotation) and shared ritual spaces"
100). At the level of
the ayllu menor, the territory covered becomes discontinuous in both puna and valley areas,
and it is subject to the authority of the Jilanqu. This level has disappeared in .some parts of
north Potosi; in this case the Jilanqu would be the authority of the ayllu minimo. The next level
is the ayllu mayor, "which has a continuous territorial unit in the puna, and a discontinuous
one in the valley (hence the validity of the 'archipelago' image proposed by Murra, 1975),
subject to the authority of the Segunda Mayor" (Ibid). After the ayllu mayor, the final possible
level is the ayllu mdximo, or maximal ayllu. The ayllu mdximo has undergone tremendous
fragmentation since the colonial period; as a result, many areas of north Potosi do not feature
this grand unit (an exception would be the Macha ayllu studied by Platt).
Ayllu Sacaca is either an ayllu minimo or ayllu mdximo based on the most comprehensive
survey done of ayllus in north Potosi to date, comprising an area of approximately 200 sq/km.
No systematic study has been done of Ayllu Sacaca, and my project will require that I chart not
only the structural elements of Ayllu Sacaca, but also the ways in which the ayllu remains
Interlegality from Sacaca
Having described the regional ethnic configurations which encompass my proposed field site,
it is now possible to argue why Sacaca is an essential observation post from which to research
the construction of legal meaning and identity in a context that is unique in the Andes. Because
interlegality is a discursive process with involves movement of legal theory and practice verti-
cally and horizontally, the multi-layered jurisdictional structure that Sacaea is situated in—
involving parallel national and ethnic planes or axes—is an ideal location to analyze how inter-
legality operates from the vantage point of the local legal "plane" (Sousa Santos 1995). But it
must be reiterated that the ayllus of north Potosi are structurally unique, having maintained a
degree of continuity and coherence which is much greater than other regions of the Andes. A
study of legal processes in Sacaca will therefore provide an invaluable lens through which to
track the dynamic political processes in Bolivia that are causing a resurgence of ayllu vitality,
after a long decline.
Timing of Project in Relation to National Political Developments
In 1994, the government of Gonzalo Sanchez de Lozada initiated one of the most significant
legal reforms in Bolivia in decades. For purposes of this project, the crucial component of the
reform is the amended Article 171 of the 1967 Constitution. With new Article 171, for the first
time the Bolivian Constitution recognizes the existence and validity of indigenous laws,
separate from the national legal system. Although this provision is only generally worded, it
marks a formal effort by the Bolivian government to join other Andean nations—most promi-
Page 144 [PoLAR: Vol. 22, No. 2
nently Colombia—in giving de jure recognition to preexisting, semi-autonomous legal
spheres. However, Article 171 has not been officially implemented through specific legis-
lation. At present there has been one conference directed by the Ministry of Justice, but no
concrete directions have emerged. Further, it remains to be seen how actively the new
government of Hugo Banzer Suarez will continue studying ways to legislate Article 171.
In any case, what this political climate indicates is how timely my project is. Not only does my
project seek to be the first sustained ethnographic analysis of local legal functioning in north
Potosi, but it does so at a time in Bolivian history when nationwide concern with non-national
legal processes is most pronounced. It is expected, therefore, that the results of my research
will have an immediate impact at the national level in Bolivia.
The first priority of my project at ethnographic ground zero in Sacaca will be to choose a sub-
sample of local disputes—over land and water rights—and create a history of them by going
to the disputants themselves and performing histories of the disputes that are contextualized in
the disputants' own histories and social settings. I will use interviewing as the primary
procedure to accomplish this. It should be borne in mind that disputes in the Andes in general
tend to be protracted; therefore, it is expected that histories of disputes will be necessarily
fragments of longer processes.
Linde (1993) uses the metaphor of the "life history" to outline a useful methodological
approach. She describes how the dynamics of the "life history" must be understood in order
for the researcher to craft appropriate interview formats and questions. She likens a life history
to a text with the properties of the parts of the text deriving their meaning from the relation
that they bear to one another and to the text as a whole (12). Life history texts, according to
Linde. are characterized primarily by their own internal structure of coherence. A life history
can be used in two ways: first, the "portal approach." in which a life history is used to learn
about some reality external to the account
and second, the "process approach," in which
a narrative itself is the subject of analysis. Linde urges that life histories can be studied of
individuals, communities, or social phenomena, like legal processes.
In Sacaca, I will record life histories of local disputes over water and land. Disputes over water
and land in the Andes generally, and Bolivia specifically, are omnipresent, and constitute a
majority of local legal processes (see Albo 1979, 1987; Barrios Villegas 1979; Brush 1974;
Club de Economia Agricola y Sociologia Rural 1992; Drzewieniecki 1995; Godinez 1992;
Gose 1994; Harmen 1987; Izko 1993; Lagos 1988, 1994; Rostworoski de Diez Canseco 1988:
Tamayo Flores 1992). Because of this, a subset of total disputes over water and land can be
said to embody essential constructions of legal meaning and identity for locals in Sacaca. In
order to construct life histories of these disputes, I have devised a three-stage interviewing
First, working in Spanish and Quechua, I will conduct open-ended interviews with locals in
Sacaca to identify current and ongoing disputes over land and water, the individuals involved,
and the people who are knowledgeable about local legal discourse. The use of disputes in legal
anthropology has long been recognized to be particularly useful for researchers. For Llewellyn
and Hoebel the "trouble-case" was an especially crucial unit of analysis: "The trouble-cases,
sought out and examined with care, are thus the safest main road to the discovery of law. Their
data are most certain. Their yield is richest. They are the most revealing"
29; see also
November, 1999] Page 145
Nader and Todd 1979). After conducting these initial, expansive interviews, I will compile a
list of all disputes over land and water in Sacaca as disclosed in the interviews. In conducting
these initial—and indeed all—interviews with locals in Sacaca, I will be mindful of essential
works in oral history and anthropology that draw the attention of the researcher to how the
interview process involves the researcher intimately in 'native metacommunicative reper-
(Briggs 1986: 3; see also Becker 1970).
Second, after compiling a list of disputes over land and water, I will randomly sample them in
an attempt to lessen the effects of researcher bias. Following Weiss (1994: 23), in sampling the
researcher should keep four types of "contrast" in mind: (1) in significant independent
variables, (2) in significant dependent variables, (3) in context, and (4) in dynamics. It should
be kept in mind, however, that qualitative research does not easily lend itself to "double-bind"
procedures or other techniques more appropriate to the controlled environment of the
university laboratory. But, nevertheless, my research will seek to establish the "reliability"—
the extent to which responses would be elicited by other researchers under similar condi-
tions—and "validity"—the extent to which a given technique is accurate—of my data by using
the sampling technique mentioned above. Further, even though I will create a random sample
of the list of current disputes over land and water in Sacaca, I will attempt to maintain a sample
that is as large as possible. As Vansina says in this regard, "because of the intersubjective
authorship of the field work interview, reliability comes not from quantitative sampling—
although this is possible—but their representativity depends on the breadth and scope of the
interviews" (1985: 30).
With this in mind, I come now to the third stage of the approach to interviewing in Sacaca in
order to create a "life history" of disputes over land and water. After conducting initial open
ended interviews to determine current and ongoing disputes over land and water in Sacaca. and
sampling them randomly but with an eye toward breadth. I will then conduct a second round
of more in-depth interviews using the standard "fixed-question-open-response" format (see.
e.g., Vansina 1985; Weiss 1994). It is here that I will contextualize the data on disputes by
situating them within the larger social networks of the disputants themselves. This will require
me to ask questions about ages, genealogies, and the economic, social and political statuses of
the disputants within the community. This information is usually sought within an 'extended
framework (Van Velsen 1967). My goal here will be to create a data guided framework
within which to understand how legal meanings in Sacaca are created, re-created and opera-
Co-extensively with the creation of life histories of disputes over water and land in Sacaca. I
will also conduct participant-observation of local dispute processes. That is, I want to chart the
"life course" of current and on-going cases as they make their way through the various stages
of local legal processes. I must first recognize that those cases which I am able to study in-
process will largely be determined by the time frame I have to work with—twelve months. It
could very well be that I am able to observe only a handful of cases during the time I am in
Be that as it may, there are some aspects to participant-observation that should be borne in
mind. Becker has outlined a useful three-step approach to participant-observation (1970: 27).
First, the researcher should select and define problems, concepts, and indices of phenomena
he is planning to observe. Second, the researcher should continually check on the frequency
and distribution of the relevant phenomena. And third, the researcher should incorporate and
Page 146 [PoLAR: Vol. 22, No. 2
re-incorporate findings into a developing model of the institution or institutions under study.
Becker also makes the good point that participant-observation assumes that the researcher
usually does not yet know enough about phenomena a priori to identify all relevant problems
and hypotheses that must be investigated. More often, participant-observation is used to test
preliminary hypotheses and more importantly, discover new ones (26). In this sense, my
project will conduct participant-observation of dispute processes in Sacaca with the under-
standing that such a technique is provisional, dynamic, and incomplete.
As part of charting the life courses of disputes over land and water in Sacaca, I will pay partic-
ularly close attention to how the discourses of these cases are transformed as local-legal intel-
lectuals become involved in the process, and how this transformed discourse feeds back into
the language of the disputants themselves. This particular methodological focus is indeed near
the heart of my project: how local legal meaning in Sacaca is created, maintained, and trans-
formed as part of a coherent, primary intellectual system, and the roles certain significantly
involved community members play in the process.
Although data analysis plans are contained in the discussion of my research plan outlined
above, they should be explicitly stated. First, the interview strategy I have devised uses inter-
views that unfold in phases, which build on an analysis of the data generated by previous inter-
This will require that I create models of ayllu structure and jurisdictional alignment.
Creating schematic models will be important so that the legal complexity that interlegality
anticipates can be accessed theoretically. Second, I will be using participant-observation
sessions to develop specific hypotheses. These preliminary hypotheses will then be tested in
subsequent sessions. Finally, I will analyze in toto all of my data generated at regular intervals
over the 12 month period in order to begin drawing preliminary conclusions. For lengthy
fieldwork projects, researchers have found that field notes are usefully converted to rough draft
analyses while still in the field (see Vansina 1985). The objective is to begin to shift from a
descriptive to an analytical posture at the time and place where adjustments can be made and
problems with data anticipated.
There are two final methodological issues which are interrelated and can therefore be discussed
together. These are the issue of actually gaining access to the arena of research as I have
defined it, and the related issue of ethics; that is. how will I gain access to issues that neces-
sarily are quite sensitive for local people. Both of these issues, in large part, are endemic to any
ethnographic enterprise, and their solutions lie, as always, with the ability of the researcher to
be sensitive to the myriad interpersonal situations attendant to the field work encounter, and
with an aptitude for "endearing" oneself to community members. But in recent work in an
analogous field work setting, Rappaport (1994) makes some very good suggestions for facili-
tating this process.
Her project involved her at the very heart of local processes of legality, which in turn were
central to the ways in which locals defined themselves as individuals and members of the
community, and how they strategized against outsiders. It can be understood how delicate the
interweaving of political and social interests was. Nevertheless, Rappaport found that she was
able to conduct any interviews she felt necessary, observe any process deemed relevant, and
was even consulted by locals on issues of local historiography. She did four things to bring this
about. First, she offered to the community copies of all tapes and transcripts of interviews she
conducted. Second, she offered to deposit copies of any Spanish language articles that resulted
from her research with local intellectuals. Third, she offered to read the results of her on-going
research at local meetings. And fourth, she offered to train locals in research techniques such
as interviewing, recording, indexing, and archiving. I plan to employ all of these as
with my research in Sacaca.
This project has been conceptualized to be completed in 12 months, beginning on August 1,
1998 and ending on August 1 1999. The foregoing is a breakdown of my research plan by
In month 1,1 will conduct open-ended interviews with locals in Sacaca to identify current and
ongoing disputes over land and water, the individuals involved, and the people who are knowl-
edgeable about local legal discourse. I will also record the names of authority figures in Axllu
Sacaca, begin to frame my understanding of the jurisdictional structure of the ayllu, and create
a lexicon of local ayllu terminology, which often varies from ayllu to ayllu.
During month 2,1 will compile a list of on-going disputes over land and water in and around
Sacaca. Then I will randomly sample them in an attempt to lessen the effects of researcher
Though I will be randomly sampling the list of on-going disputes in Sacaca, I will attempt
to arrive at a sampled list that is as broad as possible, representing as many categories as are
suggested through the interviews.
In the following 4 months, I will conduct a second round of more in-depth interviews of
sampled disputes using the standard fixed-question-open-response format. My goal over these
4 months will be to create histories of disputes that are firmly grounded in extensive histories
of the disputants themselves. It will be during this period that I will incorporate into my inter-
views questions regarding the disputants' genealogies, and the economic, social, and political
statuses of the disputants within the community. I will also ensure that the boundaries and
functioning of Ayllu Sacaca are set within a schematic model by this stage in the research plan.
I will spend the remaining 6 months of research conducting a third round of in-depth inter-
re-interviewing disputants based on preliminary conclusions regarding legal processes
in Sacaca. It is imperative that the many data gathered be preliminarily synthesized in the field.
This will allow me to conduct final interviews after presenting preliminary conclusions to
disputants. Finally, it is expected that in the last 6 months I will be able to observe processes
by which disputes over land and water in Sacaca are resolved.
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