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Library Law and peasant communities in Peru (1969 - 1988)

Law and peasant communities in Peru (1969 - 1988)

Law and peasant communities in Peru (1969 - 1988)

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December 1995
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In this final chapter we see how the legalization of the community and its lands -or the failure to achieve this situation- managed to push, modify or stop some social processes which had been taking place within the communities being studied. Some of these changes were expected by the comuneros while others were not. Nevertheless these processes should be seen from a wider point of view, to permit us to draw conclusions about some key questions presented in the investigation. For example, what, finally, is the idea of community that predominates within the State and for the comuneros? Is our idea of legal pluralism adequate or not to explain all these processes? Did socio-legal interactions between peasant and State bureaucrats end with the legalization, or did they assume another form? What can be expected from this relation achieved between communities and the State?

Although some of these questions have already been touched upon in the previous chapters, we wish here to draw up a final synthesis to permit us to draw theoretical conclusions on the subjects of our research. To this end some important empirical conclusions are presented, arising from the earlier analysis, in order to go back to the theoretical ideas presented initially, re-elaborating them and amplifying them in some cases.

The Effects of Legalization on the State and the Community

With the Agrarian Reform process, State recognition began to be important to the peasants. Authors like Brandt (1987:b), Costa (1981), Del Castillo (1987), Figallo (1986) and Pásara (1978 and 1988) have written about legalization earlier. But they see the importance of this process mainly in the sense that recognition is a legal resource of the communities to avoid any abuse by or conflict with haciendas or other elite local and regional groups. However, my study analyses legalization differently, in a wider process, relating it to ideas of legal pluralism and socio-legal interactions between peasants and the State, among other issues.

The liquidation of the hacienda regime began to give this possibility new meaning:the legalization began to be seen also as a way to ensure a response from the State to a set of problems that had begun to confront the comuneros: lack of lands, migration to urban centres, lack of basic services, loss of authorities' legitimacy, individualism, etc. Hence, recognition, registration and titling of lands began to be considered as an important issue by the communities.

As shown in previous chapters, the legalization process influenced several aspects of communal life, such as communal infrastructure, irrigation systems, financial aid, productivity, etc. Most of these improvements would not have been made without the State's intervention, which shows that, to a certain degree, the comuneros achieved their objective of ensuring State aid through these mechanism. However, not even this aid could reverse some of the processes -such as the pressure to migrate- that were based on more global factors.

Secondly, to be successful in the legalization process, the comuneros had to have the right "spirit". This turned out to be an important factor, because it permitted various problems encountered during the process to be resolved. In this sense, the historical factor and the geographical features play an important role, because they permitted maintaining certain forms of integration and identity among the members of the community, which had been fading away due to the problems mentioned above. The success of legalization strengthened the communal spirit and also provided the communal organization with new vitality.

Thirdly, the legalization process also played an important role in the change and transformation of the Andean cosmo-vision. New patterns of conduct, attitudes, beliefs and values are being constantly introduced, changing the shape of peasant communities. This influence can also differ between communities located near the roads going to important markets, and others located in very poor Andean zones.

Finally, although Paroccan did not have significant problems with its neighbours concerning boundaries, in most of the rural zones there were constant conflicts between communities or with third parties over the possession of lands. This meant that the stages of agreements were dismissed, or that the State Court decisions did not end the conflict. The Law of Titling of Peasant Communities, passed in 1987, did not solve all these boundary problems, but only formalized the property of the communities that could reach agreement with their neighbours. Such was the case of Paroccan, which finally obtained title deeds from the State.

However, the communal organization was not the only beneficiary of the legalization. The State also managed to partly reinforce its legitimacy and importance within legalized communal spaces, as can be seen in the case of the conflict resolution system. The cases presented in the preceding chapter show that the the selection of State courts to resolve conflicts was greatly stimulated, and it even stopped being foreign to the community. Nevertheless, most of the comuneros kept on choosing the local conflict-resolving system. Moreover, legal pluralism is weak in the cases of felonies or crime, unlike in other countries. For example, in penal conflicts, there is total subordination to State law; in land conflicts both systems prevail; in family conflicts the local Andean law has priority.

The Land Tenure System in the Communities

The land tenure system has changed considerably within the peasant communities. There are several issues to take into account when explaining these changes. The first is to consider the geographical area in which the community is located, its accessibility and the type of resources that a community has, the ecological levels found there, etc. A second issue is formed by the common features that peasant communities have in a specific region or sub-region, and the relationships between them and with other social actors on a regional level. A third important issue is to understand the categories and concepts used in the description and analysis of the Andean land tenure system. The concepts of "individual" or "collective" are easier to explain in a western economy, but not in the Andean one.

During the Inca period, the ayllus were developed within a context in which the concept of "property" was associated with the idea of "State". Social differentiation was clearly established between the Inca's family, the military, the priesthood, State officials and the Indian population, and it certainly existed also within the ayllu itself, despite its apparent homogeneity.

The same assumptions have been made in studies about the Indian communities during the time of Spanish rule. The whole society was socially differentiated, because differences were considered inherent to humanity, and differentiation was a policy followed by the Spaniards. The lend tenure system changed during this period, the best lands being awarded to the Spaniards while, after the concentration of the indigenous people in reducciones, their territorial rights were recognized but this did not necessarily signify a collective property of the land.

Concerning the Republican period, we recall that the criollos gained control of the government, Spanish rule ended and important changes in the social and political structure took place. Here the social and political differentiation was no longer primarily upheld for racial reasons, as during the Spanish rule, but rather was based on wealth, contacts in the different economic and political spheres, handling of knowledge and technology and the ability to transport goods both horizontally and vertically.

In this period, the land tenure system was based on the existence of large landholders and owners of sugar haciendas, who controlled political power until the land reform of 1969. Many of these haciendas and big landholdings were formed at the time of the appropriation, through legal and extra-legal ways, of communal lands. Communal lands were finally reduced to the poorest and highest lands, such as occurred in Cuzco. The constitutional recognition of the communities as from 1921 which granted communal lands their inalienable character, did not stop this process which could only finally be stopped by the Agrarian Reform.

In this reform, the communal organization was considered an important element in the landholding system. The communal domain was respected, since it had been decided that the communities should regain unexploited parcels. The community's primacy in the organization of activities dealing with agricultural production was also allowed. That is to say, the Agrarian Reform recognized the community as a unit of production. But it also recognized that other associative forms, like the cooperatives, could exploit farming lands, and preferred this model to the communal one in order to apply it to the peasants' community. Perhaps the Statute on the Peasant Communities contains the widest recognition of customary norms. It authorized the ruling of the community's regime by traditional norms, but also limited the customary rights over lands, pastures and waters. This meant a restriction on the operation of customary law, since it minimized its effectiveness and objectives.

The land tenure system in Peru has changed significantly since the land reform. Most of the cooperatives and other associative forms such as SAIS have now been dissolved, different social types of small landowners have been created. The large extensions of landholdings have not been completely abandoned, however, especially since the economic crisis deepened in the 1980s and the presence of terrorist groups such as Shining Path was felt. Nevertheless, in recent decades the communities have shown an extraordinary capacity for survival.

Andean Law and Conflict Resolution

Andean law becomes manifest concretely in my research locations. Because it may be rather different in other Andean regions which make no part of my research, the following ideas refer to the notion and assumptions over possible manifestations of Andean law rather than a descriptive analysis.

Andean local law does not need external enforcement. It is legitimised and enforced by the same social groups that enact it. People identify themselves with their rules, procedures, sanctions and decisions. When one of their institutions is old fashioned, peasants just change it. That is why Andean law is alive and continuously changing.

This allegiance to their legal institutions does not mean they would not look also for State law support when necessary. However, the peasants deal with it in a contradictory way. While asserting the value and effectiveness of their own legal institutions, they feel also an urgency to anchor their claims and positions in official law. There seems to be a functional division in this regard. Peasants do not apply the Civil law framework to their marriages, transactions or work contracts, but they employ State law in emergency cases, once conflict or disagreement has developed. Consequently, the peasants do not ignore State law, as some scholars note, but they are somewhat reluctant to accept it completely. As I have observed, even in processes aimed at benefitting peasant communities there is resistance towards exogenously originated procedures.

Comuneros do not consider State law as a way of preventing conflicts. They mostly use it as an a posteriori device, probably because cultural reasons prevent them from incorporating State legal structures. Some scholars suggest that peasants not only ignore State law, but do so deliberately from ignorance.

Peasants usually do not trust judges and State officials. Their experience when dealing with them has been quite distressing. State authorities, in most cases, supported the hacendados against the interests and possessions of the peasantry. Even though haciendas have disappeared, State officials have still failed to understand and support peasants. When there is a power or wealth differential vis-à-vis non-local parties, comuneros expect judges and authorities to favour the richer parties.

Within this context, peasants are willing to submit their grievances to their own institutions and procedures. After all, their conflict resolution mechanisms have important advantages over the official ones: easy access, low expenditure, absence of delays, shared language and cultural code and closeness of the people involved. At the same time, peasants can approach their traditional authorities with less awe and feelings of uncertainty than state authorities.

It is important to point out that peaceful coexistence is a permanent goal in peasants' interactions. In most cases, proceedings try to find the real problems behind the explicit demands and claims. This method allows the opponents to recognize the deep causes of their controversy and to seek a satisfactory agreement. If they cannot find it, the authority's final decision usually is to propose a compromise. The parties have to make concessions to each other. And both receive a partial solution to their claims.

Using the same logic, peasants try to solve not only the problem sub litis , but to prevent new disagreements from arising. Therefore, authorities pay special attention to victims' situation, and to the need to compensate them for damages. Sometimes compensations can be just symbolic, but they express a way of solving moral or non-material problems. In some cases the answer is not to propose any solution, but to delay the decision of the authority. Peasants think this will allow the parties to examine the matter more carefully and less passionately in order to reach a solution through direct bargaining.

When there is an action opposed to the communal interest, the sanction is aimed at reintegrating the trespasser into the community. Comuneros give their verdicts an educational purpose. Changes of attitude can be achieved by the imposition of a fine, by forced communal work or by a short period in the communal jail. A common psychological punishment is based on public humiliation that induces shame in the trespasser. Punishments are applied with an admonitory objective. Physical punishment is still present in some communities. If the transgressor does not show a real desire to better his conduct, he can receive the strongest sanction of all: expulsion from the community. In the Andean world, this is almost as serious as a death sentence, because nobody can survive alone. Thus, other sanctions can be considered as ways of preventing the trespasser from being cast out by his social group.

The enforcement of sanctions is not universal. Unlike occidental law, peasants do not set the same abstract measure of punishment for everyone. Their decisions are based on all they know about the subject involved, on the personal characteristics and individual and social background. Consequently, when the transgressor is a foreigner, the decision is also different. Peasants often see the foreign trespasser as an aggressor against communal order and the comuneros' goods and lives.

Common Problems, Common Solutions

We can point out several problems shared by the communities being studied, and which should be solved soon. These problems relate principally to the communities' integration into the market and their relationship with the Central State. The solutions necessarily have to involve a redefinition of the relationship existing between the Andean and the State legal systems.

As we have seen, the communities studied have their own particular problems, but they share certain other problems which affect most of the peasant communities in Peru. Among the latter problems we can point out three of the most relevant quandaries: the weakening of the communal organization, the scarcity of lands and the great expectations of the comuneros regarding State aid. We can add a fourth, which derives from the above mentioned three: the absence of alternatives.

The first problem -the continuing weakening of the communal organization- is caused by the lack of participation in labour and communal work groups, lack of interest in attending communal assemblies, tension and struggles among the different power groups, the migration of adults and youngsters, the generation conflict and growing distrust of directive authorities. As we can see, many of these factors have nothing to do with the internal dynamics of the community, but with external causes, like the rising cost of living and the lack of job opportunities within the community.

This results in increasing hardships for communities like Paroccan that experience, for instance in the application of social control mechanisms over its members and their resources, a tendency towards breaking-up of the communal bond that holds the members of the community together. On the other hand, what really matters is the fact that, like in Ccachabamba, the comuneros themselves have noticed how important it is to obtain or keep a communal organization capable of defending themselves against common problems, such as the drop in market prices for the crops they cultivate, thereby filling a gap which the State is not interested in dealing with.

The second problem is also shared by both the communities we have studied. This refers to the lack of available lands within the community. It is a problem that gets worse in those cases where there is great number of youngsters, poor quality land and the impossibility of expanding the boundaries of the communal territory. The consequences, as we have seen, are increasing tensions among the comuneros (or peasants, in the case of Ccachabamba). These tensions are present among the rich and poor (criteria established regarding how much land each one holds), or between the younger and older comuneros. When there is a strong organization, as in the case of Paroccan, it can mediate in order to reduce or even stop the conflicts, but there is not much it can do to solve the real conflict, in which a solution can be achieved only by acquiring more land.

As Hopkins (1990:17) points out, when it comes to this problem, the peasants usually propose that in the first place there should be a restructuring or redistribution of the communal lands. In the second place, they propose more intensive usage of agricultural lands, by means of new cultivating techniques. However, their first suggestion would require a restructuring parallel to the power relations within the community, something that is very hard to achieve without breaking the communal unit itself. The second Suggestion, besides requiring training and infrastructure, will not solve the problem of land distribution.

We feel that the above is a problem which requires even more attention than the scholars are giving it, mainly because we feel that it would be in touch with the government's objectives for incorporating communal lands into the land market.

This leads us to the government's role in the communities' issue. In his work, Hopkins concludes that:
"The peasant expects too much from the State. Many of the alternatives proposed depend directly on the government's actions. This is expressed in economic problems, and in technical and social aspects as well" (1990:19).

Our research shows the truth behind this assertion. In this way, the peasants' quest for recognition and titling is just one way to secure an answer to their problems from the State. But we have also seen that this answer depends a great deal on the interest or needs which the State has in this social sector, which is why these expectations are not met most of the time, or when they are, in a very restricted way,

Consequently, legalization of the community should not be the only goal. What the community requires is to strengthen the communal organization's mediator role in relation to the State, using it to demand more access to land, credits, supplies, technology, training, etc. This turns out to be even more necessary in a political context in which the State is trying to ignore its social role in the most needy sectors.

Finally, we have the problem regarding alternatives: in other words, in what way can the comuneros find adequate solutions to these and other serious problems affecting them? Hopkins is not optimistic about this: to him, the peasants show little capacity for finding solid and precise alternatives (1990:15). We have seen, however, that after various centuries of domination and imposition, the communities have always found creative and talented ways for survival. Because of this, we believe the communities will finally find the way to keep their autonomy and their vitality, even though this seems practically impossible, considering the actual context (Bonilla 1987; Caballero 1990; Figueroa 1987; Gonzáles de Olarte 1986; Mallon 1983).

Theoretical Conclusions

State Bureaucracy and Peasant Communities

In our research special attention is given to the behaviour of the different levels of bureaucratic offices in charge of communal demands, and to strategies developed by the peasants in order to achieve their objectives.

Considering this issue, we think that the varied behaviour of the State's administration, on its different levels, must be more deeply analysed. There are two issues that deserve special attention: On the one hand the form in which the different levels of public administration in Peru organize and make connections; and on the other hand, the rationality that dominates this organization. One of the main features of the Peruvian State is its centralism. It is Lima -thus referring to a particular regionwhere the most important decisions are made, where development models and the normative framework of such models are elaborated. Then, the central authorities try to impose these models in the different regions, through local bureaucrats, regardless of whether the model is adequate to that reality. In this case, what they are trying to do is adapt the reality to the model, not the other way round (Giesecke 1989).

Centralism, and the supremacy given to the model over the reality, impedes smooth communication between the different bureaucratic levels, and between bureaucracy as a whole with society. Problems that can be emerge at the local level are not seen as deficiencies in the model, but as errors or incapacity of the officials charged with applying it. Depending on each particular case, this conception can have the consequence that the lower levels -street level bureaucratsbecome more accessible, because they do not want their superiors to realize how incapable they are to carry out the established developed model; or on the contrary, namely that they, as in Ccachabamba, strictly adhere to the normative framework ordered from above without taking into account the demands of the individuals or organizations which should be the beneficiaries of the law.

As we saw there is a mutual conditioning dynamism in the role law plays in State-peasant community relations. Andean law is influenced by the different levels at which State law operates, and this depends on different variables like migration, market relations, the history of the peasant group. Also, State law borrows some elements from Andean law, without openly acknowledging it. State officials are probably not conscious of this concession to legal pluralism, but their decisions are very useful for understanding the dynamics of Andean law.

We also saw that in the case of Paroccan, the national level was more accessible at one stage than the regional one. The Paroccan attorneys appealed precisely to the space where a decision of this type might be taken. Therefore, we can say that the relationships which can be established between the State and the Peasant Communities do not necessarily have to go through strictly following State law and the rules for the legalization process. On the contrary, these relations must be studied from different perspectives that complement each other. Perhaps the final fate of peasant communities in Peru is very related to the results and proposals that might result from these studies.

The Concept of Community

One of the most important conclusions in our study is that the term "community" denotes different realities, and is used by the social protagonists with several meanings. We cannot say that the peasant community is the homogenous, monolithic and romantic institution imagined and created by the indigenists at the beginning of the XIX century. We can find authoritarian relations and domination among the peasants, but also order and common values which allow them to build the idea of a community" and extend it to the external world.

Unfortunately, this diversity is not even perceived by lawyers. But it is important to explain the different effects and answers concerning the community's legislation, in each concrete case or region, together with the characteristics of the bureaucracy in the country. In this way, the concept of community that predominates at the level of power will be moulded in State norms, and this concept then will be disseminated in turn throughout the different levels of State bureaucracy. This concept is the one the communities will face when wishing to initiate their legal recognition and titling of lands by the State, and it will not always be equal to what the comuneros themselves handle and with which they identify. In turn, the comuneros will try to have their own idea of community recognized by the State. Therefore, the definition of the community is subject to a dynamic and continuous process that shows, in turn, the role played by law as the space for defining and redefining social roles.

Law and Legal Pluralism: Rethinking the Concepts

In the introduction we gave our concept of the law, saying that it is a social product created by man to satisfy his need for social togetherness. But, as we could see from the study of Paroccan and Ccachabamba, this social "living together", commonly speaking, is very difficult to achieve. The problems and obstacles which will be met by legal institutions in order to fulfill this function are very difficult indeed to overcome and at times, cannot be overcome at all. Therefore, a first proposal is the possibility of looking at law from a conflict perspective, rather than from a balanced one, in order to understand the way the law will react at different social levels.

This does not mean that our dynamic conception of law must be totally discarded: at least at local level we can see in some cases, like Paroccan, that the law (Andean local law, to be precise) is the result or expression of shared values among the actors, and that it can carry out an effective social control among the comuneros. But we have also seen that this task is increasingly complicated for those charged with maintaining and reproducing this law. It is important to point out that in some difficult situations the appeal to common (Andean) legal values is abandoned in order to utilize direct or indirect coercion mechanisms that are seen as slow, costly and insecure, such as the threat of having recourse to State courts to resolve conflicts (Brandt 1987; Peña 1991:a). In other cases, the communal authorities were forced to have recourse to negotiation with "infractors" in order to avoid even greater problems for the community and to maintain the social togetherness. This shows the existence of a local, Andean law based, adjustment process in Paroccan, with the objective of achieving a greater capacity to confront the present community's problems.

In this sense Ccachabamba is an extreme case of local law not based on shared values. The effects of social processes like individualism, migration, the presence of urban values, a major presence of the State and integration into the market, among others, have destroyed this community. Thus, although Andean law governs certain practices of a certain social group within a certain space, for example, agricultural labour forms, this is permanently questioned by the other group of peasants, who appear to prefer the repertoires of State law to regulate their conduct. Nevertheless, some members of this group adopt forms such as the ayni to carry our their agricultural tasks, just as some peasants in the first group handle concepts and values corresponding principally to State law. Therefore, there remains the task of studying more profoundly the chances for Ccachabamba to become a community, the conditions for a more fluid and dynamic interaction between both laws, and also in what ways this interaction could facilitate certain levels of social togetherness. From this point of view, the mutual influences we have found between both legal systems, the Andean Law and State Law, have to be seen from different perspectives. The interaction between both systems can be beneficial, but in some cases also harmful.

The mutual influences between both legal systems leads us to the question of juridical pluralism and to the relations that may be maintained by State law and Andean law at different levels of social organisation. In the case of our study, the State establishes from the beginning a legal repertoire which is going to interact with the community's own legal repertoire during certain small processes like the legalization process, but also in other social processes. The State knows that the decision to legalize is finally in the communities' own hands, but in turn, the comuneros know that they can only obtain their legalization after going through the State bureaucracy and its red tape. Therefore, the peasant communities incorporate some of the State's requirements into their local legal repertoires, and vice versa.

Thus, the legalization process not only influences the behaviour of individuals and groups participating in the process, but it also puts into effect a symbolic process which transforms or gives new sense and significance to legal values, both for the community as well as for the State, especially those related to legal security, registration and property values. This allows us to criticize certain classical statements which assume that Andean law concepts are necessarily different, isolated and alienated from western or State legal ones. This deterministic view clashes with our concept of local law in Paroccan and Ccachabamba, which describes various types of interrelations between State and Andean community law within the context of a specific social process.

The legalization process, which brought about some important legal quandaries for the actors, also led to an interaction of knowledge on the part of the different actors. This was a difficult process in which each one learned about the other's social patterns or repertoires. It was certainly not a unilateral process. Perhaps, this aspect of the interaction has a greater significance than the material aspect of the legalization process. Consequently, scholars should give more attention to this aspect. Therefore, the legalization process brings about a link between the State and the peasant communities which goes deeper than the formal bond. The peasant community turns into a legal institution. This link may extend through time in a continuous interaction process, usually at a regional or local level, but also at a national one when peasants mobilize to demand certain profits from the State. In this case the respective legal repertoires change once more.

Briefly, we can state that legal pluralism, at least from what we can conclude from our study, is a process of adaptability between legal systems in a complex process in which their boundaries are continuously redrawn. But this process of adaptability must be studied in a separate form on each social and spatial level, because we can find, as in Ccachabamba, that at the national level Andean law has more autonomy and recognition, while at a local level this law is being destroyed by the action of the State's intervention.

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Authors and Publishers

Author(s), editor(s), contributor(s)

Palomino, P.G.N.
Agricultural University
F. von Benda-Beckmann

Geographical focus