El maíz y la Saramama

'Post colonialism1 is the subject of a broad intellectual debate15. The most obvious

connotation of the word 'post colonialism' concerns the social, political and economic

impact involved in the process of the 'transition from colonialism to

self-determination' (Darian-Smith 1996:291-2). In the South American independence

experience, this process was carried on by the same colonial elite in its aspiration of

modernisation and political and economic autonomy from the metropolis. The

Republican elite were heirs to the dichotomy established by European imperialism

with the native population: The West as the civilised, the ‘others’, the non-western,

people to be civilised. Europe was self-constructed as "different and superior’.

(Darian-Smith 1996:294) The same reasoning was reproduced by the elite of the new

nation-states drawing a distance between them as 'more western', more white, more

descendants of Europe and the other cultural -and more original- groups of their own

countries

However, to build a nation-state it was necessary to create an illusion of a national

project that all citizens shared. As Bhabha (1994:171) states: a newly built nation had

to 'give a hegemonic “normality” to the uneven development and the differential, often

disadvantaged, histories of nations, races, communities and peoples'. In South

America, under the label o f ‘freedom from colonialism’, power structures, relations of

oppression were perpetuated further than the post-colonial time. In fact, these

asymmetrical relationships formed the base on which these new nations were

l5For a summary o f main ideas and debates on post-colonial theory see Childs and Williams (1997) One o f the many publications containing a sample o f post colonial authors is Mongia ( 1996) The journal Social and Legal Studies dedicated a whole issue (1996, vol 5/3) to the link between 'post colonialism and law’

established. Here is where the role of law is fundamental, or as Fiztpatrick

(1995a:xv-i) suggests the building of the nation is ‘integral’ to that of modem law

because it is the law which provided the illusion of ‘universalisation’ to this

conflictive reality, it endorses the ‘civilised’ project.

Trazegnies (1980a:38) claims that in Peru two imports o f legal systems occurred. One

with the Spanish conquest during the sixteenth century and the second during the

nineteenth century. The first was a 'forced imposition' the second a 'free import', the

election of an independent country searching for adaptation to modernisation and

capitalist development. The claim for a new legal framework, for the modem law, is

the claim to be accepted in the 'civilised' word, in the modem project. As

Darian-Smith (1996:296)16 suggests the law with its 'mythic universalism', 'provides an

overarching frame, a totalising narrative, by which to structure, organise and idealise'

the action of these new nation-states. It helps to build the spirit of one nation, the

'general spirit’ and it appears as defending the ‘general interest’. The law gave an

‘illusion’, the reality was exploitation and discrimination particularly against the

native population for long after the independence. Even today some authoritarian

features of the state still persist as well as the denial o f the multiculturality of the

country. In this sense, some authors like Purdy (1996:406-7) arrive to a radical

conclusion: colonialism is not a fact of the past for the indigenous groups. For them

the reality is colonial and they still are objects of so much usurpation and alienation.

She claims (quoting Moody 1993:xxix17): 'to treat colonialism as a thing of the past is

to ignore ... the continuing seizure of indigenous peoples' lands and the adulteration of

their spirituality and culture’.

16 Inspired by Fitzpatrick 1992

In South American colonial times -as elsewhere- the law was used to shape the

colonised people into exploitation. The notion of the 'savage' created by the civilised

West exposed the non-civilised people to a permanent state of transgression18. For

Norrie (1993) the criminal law has remained as the official way in which repression is

performed within a framework of legality. He (1993:98) states: ‘Thus in the criminal

law, the rule of law enforces an exploitative and oppressive social system, but it does it

in a way that proclaims its self-limiting character’. Since the state holds the monopoly

of the use of force and also concentrates the production and implementation of the

legal norms, it has the attribution to declare the illegality of certain events or

behaviours'9. This is mainly done through the criminal law that is the ‘state’s most

efficient apparatus of coercion’ (Carson 1974TO)20.

Purdy (1996) reaffirms these ideas when defining the police station and the prison as

'sites o f legal violence' or as an installed style of repression toward the native

population until the present. Purdy’s (1996) study of the rate of imprisonment in

Australia indicates that there has been an increase of imprisonment as a percentage of

Aboriginal people and by now they make up 30% of the prison population. She

(1996:412-3) finds the same in relation to the poorest population in Trinidad and

Tobago having noticed that the major rate of imprisonment occurred in 1989 and 1990

during the popular uprising against the intervention of the IMF. In Peru most of the

’These ideas are inspired by Fitzpatrick 1995 (a,b) See also Norrie (1993) 19 See Rubio and Eguiguren (1985:120)

20There is a wide bibliography on the role o f criminal law within state modem law part o f which is summarised by Carson (1974) The basic idea is that historically the criminal law was designed to repress poor people and protect the interests o f the wealthy (in a process that it is well explain by Foucault 1978) and that until present criminal law is ‘formulated and administered by those segments of society which are able to incorporate their interests into the creation and interpretation o f public policy’ (Carson 1974:70)

intervention against peasants has been ‘naked repression’. The criminal law has

provided the legal framework to declare peasants’ protests as illegal but very few

people have been prosecuted by a criminal court.

2.1.2 Human Rights.-

Esteva and Prakash (1998:10-11) qualify Human Rights as one of the ‘sacred cows’ of

modem thought and nowadays as one of the expressions of ‘think global’. With other

terms, Gaete (1995:113-116) expresses the same idea unveiling the process in which

Human Rights have become a ‘political conditionality on aid-receiving’ for the third

world countries. The assumption is that the signature of human rights convenants

combined with the strength of other democratic state institutions set the necessary

stability and formal legal framework for the operation of the international market.

Gaete (1995:114) comments; ‘Human rights provide universal standards of governance

and political rationality’21.

Central to the debates on human rights is the tension between one unique standard of

values -suspiciously Western- that countries holding a variety o f cultures have to

accept. In these debates, there are those who take sides with the cultural relativism

and others who have become human rights ‘fundamentalists’22.

For his part, Santos (1998a: 180-244) is concerned with the state’s monopoly of human

rights. In other words, the state performs both roles, as the infractor but also as the

granter. It is the entity which ‘concedes’ the human rights either by incorporating 2lFrom 1975 the US government conditioned its external aid to the acceptance o f human rights convenants Contradictorily, the US government has not signed some o f these documents This is not the only evidence o f its 'double standard’ in relation to human rights There is also the fact that the US government has not hesitated to overtly support leaders committing gross human rights violations, as it did with Pinochet in Chile. (Santos 1998a: 184, Gaete 1995:113)

22There is a wide literature on the subject Gaete (1995) summarised main arguments in debate Esteva and Prakash (1998) are an example o f a critical position o f the whole issue o f Human Rights and Santos (1995,1998a) supports some o f these critics but believes in the emancipatory capacity o f the international human rights activism

them into the domestic laws (e.g. the Constitution) or making the international

convenant part of the national legislation. The human rights can be both defended or

violated by the same protagonists: the state’s representatives. In principle, the state

can be challenged through the international system, for instance, in the case of Peru,

through the Inter American Court. Santos (1998:188) assesses, however, this court has

had ‘a very scant activity’ because the level of resources needed to take a case there

makes this an unlikely possibility. Consequently, human rights enforcement is

inescapably linked to the features of the nation-state and its legal system.