The Struggle for Control : A Study of Law, title: Disputes, and Deviance SUNY Series in Deviance and Social Control author: Lauderdale, Pat.; Cruit, Michael publisher: State University of New York Press isbn10 asin: 0791413128 print isbn13: 9780791413128 ebook isbn13: 9780585091907 language: English Justice, Law reform, Dispute resolution (Law), subject Deviant behavior, Social control, Dispute resolution (Law)--Costa Rica. publication date: 1993 lcc: K240.L37 1993eb ddc: 347.7286 subject: Justice, Law reform, Dispute resolution (Law), Deviant behavior, Social control, Dispute resolution (Law)--Costa Rica. 1
The Struggle for Control 2
SUNY Series in Deviance and Social Control Ronald A. Farrell, Editor 3
The Struggle for Control A Study of Law, Disputes, and Deviance Pat Lauderdale and Michael Cruit State University of New York Press 4
Published by State University of New York Press, Albany 1993 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any matter whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, address State University of New York Press, State University Plaza, Albany, N.Y. 12246 Production by E. Moore Marketing by Theresa A. Swierzowski Library of Congress Cataloging-in-Publication Data Lauderdale, Pat. The straggle for control: a study of law, disputes, and deviance / Pat Lauderdale and Michael Cruit. p. cm. (SUNY series in deviance and social control) Includes bibliographical references (p. ) and index. ISBN 0-7914-1311-X (CH: acid-free). ISBN 0-7914-1312-8 (PB: acid-free) 1. Justice. 2. Law reform. 3. Dispute resolution (Law) 4. Deviant behavior. 5. Social control. 6. Dispute resolution (Law)Costa Rica. I. Cruit, Michael, 1947-. II. Title. III. Series. K240.L37 1993 347.7286dc20 [347.28607] 91-47942 CIP 10 9 8 7 6 5 4 3 2 1 5
Dedicated to The People of Sierpe and Annamarie, Rufina, T. E., Almeta, Panaman, and Daniela 6
Page vii Contents Foreword Preface Acknowledgments ix xv xvii 1. The Scope 1 Introduction 1 Disputes, Law, and Deviance 5 The Setting 12 Social Relationships and Disputing 26 Rationalization and Access to Dispute Forums 28 Time 34 Cost 36 The Politics of Dispute Management in Costa Rica: An Introduction to the Case 2. The Disputing Process 47 Case 1 - Resident or Squatter? 47 Case 2 - The Colorado Camp 59 Case 3 - The House Without a Home 70 Case 4 - Denouncing the Campesino 82 Case 5 - The Fruit of the Land 91 Case 6 - The Sierpe Gift 99 Case 7 - The Absentee Landlord and the Local 112 Case 8 - The Inspection 119 Case 9 - The Rainy Season 129 38 7
3. An Analysis of Dispute Management: The Absence of Resolution 139 The Nature of the Social Relationship 139 Simplex/Multiplex 140 Insiders/Outsiders 141 8
Page viii Social Context and Social Relationships 145 Access and Social Context 152 Time and Social Context 166 Cost and Social Context 169 4. Conflict and the Struggle for Control 173 Cultural Dimensions 173 Tide-Time 173 Milla Maritima 175 Private/Productive Property 175 Nonviolent Disputing 176 Encompassing Issues 179 Modes of Dispute Management 180 Social Control and Deviance 183 Epilogue: Justice and Social Control 187 Appendix A: Agrarian Reform in Central America 197 Introduction 197 Rationalization and Land Reform 198 The World-Polity Perspective 199 Land Tenure and Reform 200 The Incorporation of Central America 201 The Commodification of Land 204 World System Impact 207 Conclusion 209 Appendix B: The Rationalization of Law in Costa Rica 211 Rationalization 211 9
Rationalization of the Law in Costa Rica 212 Increased Rationalization 214 Section I: Agrarian Reform in Costa Rica 217 Notes 221 References 229 Subject Index 247 Author Index 253 10
Page ix Foreword The Struggle for Control is a study of nine land disputes in the Sierpe region of Costa Rica. The region is isolated, underdeveloped, thinly populated, poor, with badly developed transport and communications. The state itself is poor and only weakly present in the region. In fact, it is so weak that the local system of justice is sometimes a fee-for-service system in which complainants must pay the transport costs of witnesses to courts, and people in need of police service must pay the transport costs of the the guardia if they want help. The distribution of property rights mixes small peasants and merchants with the shadow presence of absentee landlords. But because of the large amount of unused, unoccupied land, there is an influx both of poor migrants in search of land and wealthy foreigners in search of investment opportunities, giving the whole region a frontier atmosphere. Because of the influx of migrants and the weak presence of the state, land disputes are common in the region. Land is often sold without a title search or land survey, the property rights of the region in any case separate use, ownership, and controlfor example, giving rights to use and possession that do not depend on ownershipso that boundary and title disputes are endemic. Thus, the nine cases studied by The Struggle for Control include cases of unclear title, boundary disputes, and conflicts between rights of use, ownership, and possession, including poachers (for gold, not animals) and squatters on the land. While the cases described in The Struggle for Control have the fullness of an ethography, it is not really ethnographic in method. It is really a theoretically oriented monograph concerned with the amount and kind of social control found in disputes and the variables that determine them. Its underlying theoretical model assumes a boundary around a shared moral order, but a fragility of the moral order that requires it continually to be defined and redefined. Because the moral boundary shifts as a func- 11
Page x tion of internal and external threats, the amount and kind of social control is a variable. Hence, the motivation of the inquiry is to study factors that account for variation in social control. Because it is concerned with a general social process more than a particular situation, it is unlike an ethnography in having a hypothesis to test. Not that there is an explicit null hypothesis. But there is nevertheless a fairly straightforward hypothesis at stake: How far is a theory of disputes and social control derived from the North American experience simply ethnocentric? This calls for a certain way of reading and understanding the monograph. First, it has to be understood as a comparative study even though the comparison (to the U.S.A. but with frequent reference also to the anthropological literature on law) is mostly implicit. Second, one has to continually distinguish four very different elements of the text: metatheoretical presuppositions and directives, general theoretical principles, particular descriptions, and conclusions that depend on combining the theory and description. The metatheoretical elements of the text include its argument for integrating disputes, law, and social control, for taking a structural approach to disputes, for integrating conflict and consensus theory into one approach. The theoretical element of the text consists in abstract terms and general empirical laws. The abstract terms include words like "deviance," "social control," "access," ''costs," "resources," and "multiplex" versus "simplex" relations. The general laws consist of universal conditionals that are abstract and general, but have empirical import. These include sentences like "multiplex relations tend to suppress open conflict," or "the course and outcome of disputes are determined by patterns of access to the formal and informal mechanisms of social control," or "the weak presence of the state magnifies the effects of differences in resources on the course and outcome of disputes." The descriptive elements of the text themselves divide into two kinds of elements, though one is often implicit. The first, the more often implicit element, links the terms of the general theoretical structure to the particular instance. That is, the terms of the theory have to be instantiated if the theory is to apply to the case. Thus, "informal social control" has as instances the family and friendship networks of the region; formal social control has as instances the municipal court, the judges, the attorneys, the guardia. Multiplex relations have as instances overlapping of relations created by residence, employment, marriage, and the like. "Access" has as instances a 12
somewhat complex pattern of chan- 13
nels connecting one either to the formal or the informal systems of social control. Page xi A second descriptive element encompasses the initial conditions of the process in the particular instance. That is, it describes particular states the antecendent ("if") variables in the general law-like sentences have in the particular case. Here again, one must be careful how one reads the text because this works at two distinct levels. On the one hand the Sierpe region of Costa Rica differs from the U.S.A. For example, the frontierlike region described in the monograph has an unfamiliar mix of legal systems, part rational-legal, part an almost patrimonial system described as chorizo (meaning "sausage"), frequently felt to be corrupt but in fact another kind of legal system. At a more micro level, each particular dispute differs in the values of variables such as access, time, cost, distance, social relations, and social context that affect the course and outcome of conflicts over land tenure. The two levels together account for the outcomes of the process in the particular region, in general and in each particular case. The fourth element of the monograph are conclusions that derive from a combination of the theory and the descriptive particulars: conclusions about disputes in the region, though typically offered as descriptions, are derived from conditional lawlike expressions in which the descriptive particulars are substituted for the abstract terms of the theory and the particular initial conditions of a case are substituted for the abstract, general antecedents of the conditionals. Thus, one has sentences like "NorteAmericanos are outsiders with respect to both the formal and informal mechanisms of social control in the region" and "double outsiders (though the term is not used in the monograph) are the most disadvantaged actors in disputes over land in the region." The metatheoretical approach of the monograph is a unique combination of elements that transcends the boundaries of topics within disciplines and the disciplines themselves. It integrates into a single process disputes, deviance, and social control, and the law. With respect to disputes it takes a structural approach, meaning that disputes are not really resolved; rather, they recur over and over again, though possibly in different guises. In fact the method of the book is founded on this concept of a structure underlying the apparently transient event of a dispute. Disputes are treated as if they were like an ethnomethodologist's breaching experiment; their purpose is to discover the 14
underlying, taken-for- 15
Page xii granted structure that is normal but normally not visible. Although the approach is structural, there is at the same time a process of negotiation on the surface that is treated as a function of this underlying structure, but at the same time is what reveals it. These negotiations arise because disputes involve definitions of right and wrong. Hence, they involve definitions of the persons engaged in the dispute as either conforming to the rules or deviants from them. This is of course a view founded on the interactionist theory of derlance, which is central to the theory underlying the monograph. But it takes more seriously than this theory typically does the fact that it is not only deviants who are defined; the process also defines who is a conformist and who is an agent of social control. In the frontierlike region of the Sierpe, where occupation of land is in flux and complicated by legitimation of use rights, the ambiguity of ownership rights magnifies this feature of the process, bringing it more fully into view. That disputes are determined in their course and outcome by definitions of conformity, deviance, and agents of control means that social control is an important aspect of disputing. In the first instance, this leads Lauderdale and Cruit to study the laws, courts, and police force of the region. But The Struggle for Control integrates the analysis of the formal system of social control with analysis of the informal system. In fact, one of its more interesting arguments is that rationalization of the law sometimes increases rather than decreases the significance of the informal system of control. One of the useful by-products of both the integration of formal and informal social control and the ethnographic detail of each case is that the monograph continually exhibits the close interconnection of its micro and macro levels of analysis. It ranges from world system factors (which are part of the social context of each dispute) down to the social psychology of the actors involved in disputes and how it relates structure to action. While the structure is everpresent, the book is also about actors and their actions. The monograph continually displays how they are interconnected. But perhaps the most attractive feature of the approach is that it also integrates conflict and consensus into a single theoretical structure. Like conflict models, the theory of The Struggle for Control sees a world that is more than one moral community. It pays close attention to the suppression of the issues in some conflicts and to the importance of control over the agenda of a dispute to its course and outcome. But it addresses both elite and collec- 16
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Page xiii tive reactions to conflict and deviance. It rejects the view that either alone explains the course and outcome of a dispute. This shows particularly in the monograph's analysis of the relations between formal and informal systems of social control. Because of its broadly general perspective, the implicitly comparative method of the monograph deals with both similarities and differences between civil justice in Sierpe and the U.S.A. The similarities give one a sense of what is general about the process of dispute management, law, and social control, such things as the importance of access, effects of the strength of the state, and the role of third parties, who are both activated by and determine the course and outcome of the process. But the monograph is also concerned with differences. In comparative studies in general, differences might have either of two quite distinct interpretations: they might indicate that what we had thought was a general process is in fact not general; that our view of the general process was confused by ethnocentrism. Alternatively, they might in fact confirm our understanding of the general process, showing the effect that differences in the values given to the variables of the theory in the particular case, acting through the same general principals, have in producing different outcomes. The findings of The Struggle for Control are of the latter kind. They largely confirm the general theoretical structure that guides the investigation, though they suggest a quite large number of questions for further research and directions in which to elaborate the theory further. Thus, probably fewer disputes occur that involve people in multiplex relations in the U.S.A. than in Sierpe. Sierpe gives us more of a sense of the effect of this aspect of social relations than research in the U.S.A. But the differences between Sierpe and the U.S.A. are due to the greater frequency of multiplex relations in Sierpe rather than the way multiplexity, when it occurs, will affect the course and outcome of a dispute. The combination of what are usually compartmentalized variables into one theory and the combination of a general theory with ethnographic methods of investigation makes The Struggle for Control a multifaceted work. Much of its fascination lies in the interplay of its elements. Its complex texture makes it a book of very general significance. The downside of this is that any one reader, possibly not familiar with all the diverse literatures on which the work draws, will find some of it hard reading. But the synthesis of so many 18
elements also means that the book should be of interest to a large, if disparate, audience ranging from students 19
Page xiv of disputes and their management to students of law and society more generally, from Latin Americanists to anthropologists more generally, from sociologists studying deviance and social control to sociologists more generally. MORRIS ZELDITCH, JR. Stanford University 20