Decoding Gender: Law and Practice in Contemporary Mexico

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Scholarly work on law and gender in Latin America has begun to gather pace in recent years, after a period of relative neglect. This revival has proceeded in tandem with efforts by women’s movements during the period of democratic transition to advance programs of reform aimed at securing gender equality in the spheres of law, politics, and social rights. Nourished in part by this interaction , a growing literature is to be found on the social, political, and historical aspects of law and gender relations, as well as a sizeable quantity of policyrelated work on specific aspects of legal reform. This output is, however, dispersed across discipline and region; some of it is ephemeral; and there are still only a handful of book-length studies dedicated to this important area of scholarship . Decoding Gender: Law and Practice in Contemporary Mexico is therefore to be welcomed both for bringing together a quality collection of studies spanning more than one hundred years of Mexican history, and for its coverage of issues of contemporary scholarly debate. Mexico is in many respects an ideal case study for exploring the intricate associations between law and gender in Latin America. A history of state formation marked by colonialism, revolution, and a “perfect dictatorship” of seventyone years, together with uneven progress to join the dozen largest economies in the world, were and remain consequential on women’s rights, in unexpected and sometimes conflicting ways. Today Mexico is a country with a population of over one hundred million people, more than half of whom are of indigenous or mestizo descent. Mexican society is riven by deep inequalities along class, gender , and ethnic lines, with these divisions refracted across social and cultural forms unevenly incorporated into the market economy. Three centuries of Spanish rule left its imprint on Mexico’s justice systems, religion, language, demography, and economy, but this institutional apparatus always existed in a dual relationship, part coercion, part accommodation, with indigenous society. The colonial state was founded on the Greco-Roman tradition of law, its jurisprudence modified over the centuries, but more decisively transformed in the modern epoch by the influence of the Napoleonic Codes, by independence, and by the influence of liberalism and Enlightenment thought. FOREWORD MAXINE MOLYNEUX ix Prelims.qxd 4/7/07 10:35 AM Page ix From the mid-nineteenth century, Mexican rulers embarked on a process of modern state formation, inspired by liberal principles of governance and justice , albeit adapted to and insecurely implanted in the formation over which they presided. If the modern history of law and gender in Mexico is that of state formation and re-formation, it is also a history of national and local discontinuities and of a complex articulation of state and customary modes of social regulation . Thus, despite the apparently unifying instance of law in the institutions and codes of the state, there is no singular account of law and gender, and even today in some regions of Mexico legal regulation is conducted through a plurality of parallel, overlapping, or syncretic systems. Common to much of the region, these features endured in some parts of Mexico despite the upheavals of the revolution of 1910 to 1920 and the creation of a modern corporatist state. Such continuities existing within the broader currents of social change are central themes in analyses of law and gender in Latin America. Post-independence liberal governments sought to promote structural and institutional changes as part of their modernizing projects, and treated law as an accompaniment to, and instrument of, social change. Legal and constitutional reform and the creation of new regulatory instruments subjected the diverse forms of social life to a central authority, which defined itself according to prevailing liberal principles. Yet gender relations were only partially transformed in this process, and not always to women’s advantage. Luso-Hispanic colonial laws had accorded women rights and status different from men’s, imposing on married women the obligation to serve and obey their husbands. This principle was reiterated in Article 213 of the Napoleonic Civil Code, and, although early liberalism proclaimed itself committed to freedom from servitude, its laws did little for what John Stuart Mill described as the slavery within marriage. At the heart of liberal legal reasoning about the gender order lay elements of earlier systems of patriarchal right. Although postcolonial state makers in Latin America sought to shift the principles of legal regulation from what has been called “colonial patriarchalism” to liberal contractarianism...