2
Indigenismo[ was a movement concerned with the welfare of indigenous people. ]Indigenista[ attitudes ranged from a rejection of creole culture in favor of indigenous Andean culture to modernization approaches which sought a solution to the Indian "problem."3 For some of the many literary denunciations see Pásara (1988:19-30).
4 See also Davies (1974, ch. 2).
5 A year later Borah (1983) published a landmark study evaluating Spanish law regarding Indians and indigenous legal activities in colonial Mexico.
6 For a literature review of Peruvian research on law and society see Yrigoyen Fajardo (1994).
7 Legal pluralism has become an increasingly popular area of study among legal scholars in various parts of the world, see for example Just (1992), Merry (1988), Moore (1986), Nader & Todd (1978), Renteln & Dundes (1994), and Stavenhagen & Iturralde (1990).
8 Brandt, the only non-Peruvian legal scholar cited here, also deals with customary law in native communities in the Peruvian jungle. Another sophisticated legal scholar, Francisco Ballón (1978, 1990) has also written on this subject.
9 "Rights" is used here advisedly to convey meaning to Western readers. There are no studies of the concept and language of rights in Andean political thought. Generally, speaking the language of customary law in the Andes has been the language of (reciprocal) obligations. The concept of "rights" entered indigenous thought through the Peruvian political system.
10 It should be noted that such privatization did not normally in and of itself lead to the dissolution or deterioration of communities.
11 In a few communities there were also parallel women authorities (Mayer 1974:242; Silverblatt 1987; Valderrama & Escalante 1988).
12 In the past, community assemblies are usually meetings of all heads of household, male or female, though in some communities all community members, men and women traditionally participate (Revilla & Price 1992:137).
13 The information in this paragraph is based on Brandt (1987), Peña Jampa (1991a), and Revilla & Price (1992).
14 Lieutenant governors also had duties as regards ]
faenas[ called by local elites. In this activity, they clearly represented the system of domination, whether willingly or unwillingly.15 In the case of conflicts with outsiders, equilibrium is not a criteria (Brandt 1987:163).
16 Fines as an punishment was an innovation brought by the Spaniards (Valdez de la Torre 1921:63).
17 For detailed information on types of punishments see Ambia (1989), Brandt (1987), and Peña Jampa (1991a).
18 See Brandt (1987:156) for the phases in the disappearances of this type of punishment.
19 For indigenous people/peasants in Peru the term "peasant" means more than just class status or occupation. It also has connotations of ethnic identity (see Drzewieniecki forthcoming).
20 Legal culture is defined as "the generalized set of lay and professional values and attitudes towards law and the role of legal process in society" (Karst & Rosenn 1975:57-58).
21 Even the agrarian reform law of 1969 that so greatly changed land tenure in Peru and affected the life of all indigenous people and peasants was drafted by a well-known (and well-meaning) Peruvian jurist over drinks with friends one evening. Or so legend has it. The fact is that peasants had no input whatsoever on this legislation.
22 Karst & Rosenn (1975:59) give the difficulty of collecting taxes in Latin America as an example.
23 The ]
mestizo[ governor of Cay-Cay, Paucartambo and defender of Indians wrote in 1930 to the subprefect of Paucartambo describing ]tinterillos[ as "...the true bird of prey (...) a starving thief whose various pretexts corrupt and suck them without mercy. Therefore, I ask that the departmental political authority and the Supreme Government dictate the most severe measures to exterminate this pernicious element. They should [be] fought without truce, for this is the only way the Indian can shake the yoke that oppresses him and become an element for the country's progress" (Rénique 1988:19). Translation Rénique's.24 All these features of the Peruvian legal system have been a constant source of indigenous and peasant complaints which grew more and more vocal from the early years of the 20th century (e.g. ]
Rimanakuy '86[ 1987; Sivirichi 1946). There was little reform and, in fact, the corruption of the judicial was one of the reasons that Fujimori gave for his auto-coup of 1992!25 Not all radical lawyers were above exploiting peasants (Dew 1969:66).
26 There has generally been more than one level of justices of the peace. For general information see, for example, García-Sayán (1987a), ]
La justicia de paz..[ 1987, Martínez G. (1967), and Revilla & Price (1992).27 It should be kept in mind that municipalities at this time had two ]
alcaldes[. In some municipalities, one ]alcalde[ was indigenous while the other was ]mestizo[ (see Drzewieniecki 1995a).28 Since 1975 Peruvian law has specified that preference should be given to candidates nominated by peasant groups (Pásara 1988:222-223).
29 Those early Republican indigenous ]
alcaldes[ who performed the roles of justices of peace (see above) were, of course, not incorporated into the power structure. There is no information on how they may have related to other community leaders.30 For a very interesting contemporary analysis of how a justice of peace "established his authority by his appropriation of the language of power [Spanish] and by negating its use to the accused" see Harvey (1987:117); translation mine.
31 Not all solutions dealing with livestock were solved so easily. Livestock theft was a perennial problem in the Andes.
32 One of the reasons it is virtually impossible to get information on many aspects of the work of justices of the peace in the 19th and early 20th century is that in general their decisions were not written. This was still the case in the 1970s (DESCO 1977b:249).
33 On ]
haciendas[, the landowner traditionally dispensed justice. Interestingly, "captive communities" that lived within the borders of ]haciendas[ also had their own traditional authorities that also administered justice (Tamayo Herrera 1982:172-173).34 A few representative works that advance these arguments and present evidence include Celestino (1972), Contreras (1991), Degregori & Golte (1973), Fonseca (1988a), Instituto Indigenista Peruano (1967-1969), Mallon (1983), Urton (1992).
35 See also Gálvez (1987). This is a legal application of the question of the individual and communal or the familial and communal that is often addressed in studies of indigenous communities Andes.
36 These conflicts are covered in Drzewieniecki (forthcoming).
37 The information in this section is based on Brandt (1987), DESCO (1977b), Forman (1972), Pásara (1987), a variety of historical sources, and the others sources cited.
38 This is a fascinating subject which is beginning to receive increasing and highly interesting treatment. For various aspects of these issues since the colonial period see ]
Andean..[ (1992), Forman (1972), Lienhard (1992), Radcliffe (1990), Tamayo Flores (1992), and Valderrama & Escalante (1992). For work on Colombia with important implications for Peru, Bolivia, and Ecuador see Rappaport (1994, 1994a, 1994b).39 Evidence for this kind of behavior is provided in Contreras Hernández (1985:210), Housse (1946:287-291), Kapsoli (1989:74), Martinez-Alier (1977:90, nt.1), Smith (1975:358), Stavig (1991:165), and Valderrama & Escalante (1992). Sorcery was also sometimes used to try to influence indigenous and Peruvian administration of justice (Gow 1981:241; Valderrama & Escalante 1992).
40 The other two major commandments are: don't be lazy and don't rob.
41 Another crime punishable under Peruvian law that was frequently taken to Peruvian authorities although some cases were handled by communities was ]
abigeato[ or banditry including livestock rustling. For information on this subject see Aguirre & Walker (1990), Brandt (1987); DESCO 1977b; Poole (1994a), and Valderrama & Escalante (1992).42 See, for example, Albo (1976:83-84), Brandt (1987:155-157), DESCO (1977b:246-247), Skar (1982:226), and Ossio & Fuenzalida (1983).
43 Platt (1982a) theorizes that indigenous people, a least in the 19th century, saw their relations with the state as pact of reciprocity in which they exchanged tribute payments (abolished in Peru in 1854) and labor for their rights to the land.
44 For conflicts between communities see Brush (1974), Contreras (1991), Hünefeldt & Altamirano (1989), Urrutia, Adriano Araujo, & Joyo (1988).
45 The legal basis for the registration of land in the Republican period was established only in 1891 (Jacobsen 1982:353).
46 Martinez-Alier (1977:87) points out, for example, that landlords "were not strong enough to have the property titles cleared up, nor to have the communities' land brought into the market."
47 Research carried out by Bourricaud (1967:142) suggests that some landowners backed down in some disputes with indigenous people because of the prospect of a long and costly legal process.
48 For suits in the first half of the 19th century see, for example, Hünefeldt (1982) and Urrutia, Adriano Araujo, and Joyo (1988).
49 See, for example, Burga and Flores Galindo (1984:128), Flores Galindo (1988b:357), and Palomino (1978).
50 It also substantially increased suits between communities (Contreras 1991).
51 Poole (1990) notes the affinity of Indigenistas for action through legal means; Smith & Cano (1978:169-170) demonstrate the same for members of the APRA party.
52 Some examples can be found in Deere (1991), Hünefeldt & Altamirano (1989), Jacobsen (1982), Laite (1978), Manrique (1988a:116-118), Tullis (1970:122-128), and Whyte & Alberti (1976:159).
53 In my opinion, it also had considerable influence on the political culture of the majority of Peru's population, but that is a topic that must be treated elsewhere.
54 To be fair the Peruvian state never sought such a monopoly. On the other hand, it has never been capable of achieving it.
55 For additional indigenous views of the Peruvian legal system see DESCO (1977a). In the Aymara community in which Peña Jampa (1991:47) did his research one of the punishments was to take a case to government authorities!
56 See footnote 7 above.