Legal System is Better?
town mayor, receiving request for aid
in the aftermath of 9/11 the smugness of the Western World
may have received a reality check, we still have a long way
to go in terms of recognizing that everything we know, have
and cherish is not necessarily the best
by a long shot.
I would propose that by comparing a dispute resolution system
in a Zapotec village (in the state of Oaxaca, Mexico) to that
in a Canadian city, we can reduce our ingrained ethnocentrism
and further our appreciation that foreign institutions may
better serve individual goals and societal purposes than ours.
I will cite findings from anthropologist Laura Naders
fieldwork conducted in a thatched roof Oaxacan village of
2000 bilingual (Spanish-Zapoteco) inhabitants1,
and my own experience as a family law litigation lawyer in
Lets examine the Ontario, followed by the unsophisticated
Zapotec village legal means of resolving allegations of spousal
abuse, and then consider which system functions more appropriately
to advance social and economic goals and values. While one
might disagree with my conclusion, in particular given the
politically charged nature of the topic, keep the thesis in
Several years ago the Ontario Ministry of the Attorney General
issued a directive that once an allegation of spousal abuse
was made, criminal charges ought not to be withdrawn, and
plea bargains based upon what both spouses wanted were out
of the question. A criminal trial was supposed to run its
course except in the case of a guilty plea in which case there
would be a range of predictable results including a criminal
record for the perpetrator.
Upon receiving a complaint, the police either hauled the alleged
abuser off to jail pending bail, or required that he leave
the home immediately, in both cases resulting in the alleged
victim (and usually children) being the only one(s) permitted
to remain in the home. A shove or push within the context
of a disagreement/shouting match and a precipitous 911 call
set into motion a speeding unstoppable freight train.
Concurrently, civil family court proceedings progressed, with
the standard requests for custody, support and division of
property, and the added claim for monetary damages for abuse.
Vindictive spouses and their overly zealous lawyers realized
that by merely making an allegation of abuse, the goal
of achieving exclusive possession of the matrimonial home
could be realized quicker than proceeding in an orderly fashion
in the civil court, and without any financial cost whatsoever
(there are no legal fees incurred in alleging abuse to the
police and letting the system look after keeping an alleged
offender out of the house for months if not years.)
Relatives rallied around their children, nieces and nephews,
in support of the cause, swearing affidavits containing the
nastiest of allegations, often based on hearsay or half-truths,
thereby escalating the conflict. Mediation, even when court
mandated, tended to be positional and contextualized by the
goal of winning. The possibility of reconciliation
diminished daily. Criminal court bail terms and family court
restraining orders precluded the spouses from communicating
directly with one another, even with family members present
as intermediaries. In the latter court, old-school judges
at times lamented that their duty was not to foster compromise
and that the empowering legislation did not permit them to
consider reconciliation, but rather mandated pushing forward
with deciding the invariably polar claims.
The criminal court result, often a year or more down the road,
became inconsequential within the broader context of the separation,
and the precipitating event was all but forgotten, except
for one spouse blaming the other that he or she was the initial
cause of everything. The weight of psychological literature
convinced judges that joint custody in all but the rarest
of circumstances was out of the question, with fathers being
relegated to alternate weekend surrogates and babysitters.
Restraining orders against one spouse gave the other power
and leverage for years. As feminist groups expounded, women
became impoverished for all times relative to their former
spouses, even within the context of an equal division of assets
and support orders.
Before turning to the Zapotec village legal system we should
examine the more general community relationships in a particular
rural parish. This predominantly agricultural enclave, as
with most of even the smallest of Oaxacan populaces, maintained
ties to the state capital and further abroad through kinship
and fictive kinship (compadrazgo, a complex system of godparents,
godchildren and their respective families.) Within the village
itself, at times binding it to nearby similarly constituted
populations, there were savings and loan organizations, religious
associations, musicians troupes, common work groups,
and so on, suggesting relatively intricate development of
social groups. Conspicuously absent, however, was material
wealth and the intra-village availability of sexual partners.
There were two legal systems capable of resolving cases of
spousal abuse or abandonment, with the wife, most often being
in the more powerful position of being able to choose, based
upon specific strategies, which mechanism she wanted to initially
pursue, without foreclosing her ability to utilize the other.
In the first instance she could convene a meeting of both
sets of parents who could both mediate and arbitrate a resolution.
She retained the option of staying in the marital home or
leaving it to live with her parents before or after enlisting
the assistance of the families. The families were capable
of making decisions regarding all aspects of the relationship
and in particular the precipitating event.
If the familial system failed to bring about a resolution
with which she agreed, the wife could appeal to the community
court, consisting of an annually elected president and judge,
requesting that the husbands behavior be corrected by
penalizing him. The court was not, however, foreclosed from
considering reconciliation although the medium was most often
sought out by the wife to affirm a severing of the relationship.
The husband was essentially restricted to applying to his
wifes parents for a resolution, rarely seeking out the
community court. The only circumstance in which he would attempt
to avail himself to the latter would be to request the return
of brideprice money. If a resolution (i.e. reconciliation)
was not reached by making a plea to the wifes parents,
he would usually in vain search for a new partner in town,
or simply leave the community. The wife still retained the
option of forcing him to appear before the community court.
The president in the community court system resolved most
cases, if the families were unable to do so. The wife, in
appealing to this court, either after the parents had failed
to bring about the requested resolution or at first instance,
kept all her options open
reconciliation, a simple severing
of the relationship, or severance with penalty being forced
upon the husband.
Both the Ontario and Zapotec systems of dispute resolution
of spousal abuse claims empower the victims and make perpetrators
pay. Beyond this the similarities end. I suggest that the
Oaxacan village mechanism much better serves the interests
of the individual and society. The Ontario courts do everything
possible to inhibit both reconciliation and a resolution of
the issues in a non-confrontational forum. While mediation
is mandatory throughout the process, by the time it arises
the positions are entrenched. Family members are used to fuel
the flames (often having been encouraged by counsel to participate
by supporting the position of the purportedly aggrieved loved
one), in stark contrast to their utility in rural Oaxaca.
The Ontario process takes at least a year and tremendous emotional
and financial drain for a resolution to be reached, even when
the issues do not involve payment of support or a division
of property. In the Zapotec, as in Ontario system, economics
is a valid consideration, but the approach and how financial
matters impact on the resolution options is quite different.
According to Nader, relevant factors for the third party decision-makers
dealing with issues such as whether reconciliation should
be considered, include availability of scarce resources such
as food and sexual partners, parents as a support system and
Both systems appear to acknowledge the same desires and values
respectively for the individual and society but our modern
sophisticated Western World appears to be floundering, while
at least this one Third World micro-society has continued
to resist change and stay focused.
1. See for example:
- Nader, L. , 1961 Space and social organization in two Zapotec
Unpublished Ph.D. Dissertation, Department of Anthropology
- 1964 An analysis of Zapotec law cases. Ethnology 3 (1964):
- 1969 Styles of court procedure: To make the balance. In
Law and culture and society, edited by L. Nader. Chicago:
- 1973 Dispute settlement and community organization: Shia
Moslem and Mexican Zapotec. In The social organization of
Edited by D. Black and M. Mileski. New York: Seminar Press.
2. Banks & Starkman, Barristers & Solicitors, 1986
3. While Naders fieldwork per se is dated, on balance
her findings are still valid given that today, of the 570
municipal districts in Oaxaca, over 400 are still governed
and administered by uses and customs, the traditional
popular assembly which supersedes state and federal law.
Machaya Oaxaca Bed & Breakfast ( http://www.oaxacadream.com
Starkman Casa Machaya Oaxaca Bed & Breakfast ( http://www.oaxacadream.com
) combines the best of bed & breakfast Oaxaca with a downtown
Oaxaca hotel style characterized by service and comfort. Inquire
about Alvins Oaxaca tours, completely personalized to
meet your specific interests and passions. Alvin is the Oaxaca
destinations expert for a major international travel website.
Casa Machaya is a founding member of the Oaxaca Bed &
MAIN PAGE | CONTACT
US | LINKS | HOME