Which Legal System is Better?

While 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 Nader’s 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 Toronto2.

Let’s 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 mind.

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Attorney General issued a directive that once an allegation of spousal abuse was made, criminal charges ought not to be withdrawn, and plea bargains based upon what both spouses wanted were out of the question.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 husband’s 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 wife’s 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 wife’s 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 family inheritances.

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.


Notes:
1. See for example:
- Nader, L. , 1961 Space and social organization in two Zapotec villages.
Unpublished Ph.D. Dissertation, Department of Anthropology Radcliffe College.
- 1964 An analysis of Zapotec law cases. Ethnology 3 (1964): 404
- 1969 Styles of court procedure: To make the balance. In Law and culture and society, edited by L. Nader. Chicago: Aldine.
- 1973 Dispute settlement and community organization: Shia Moslem and Mexican Zapotec. In The social organization of law,
Edited by D. Black and M. Mileski. New York: Seminar Press.

2. Banks & Starkman, Barristers & Solicitors, 1986 – 2004.

3. While Nader’s 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.

Casa Machaya Oaxaca Bed & Breakfast ( http://www.oaxacadream.com ) ©

The 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 Alvin’s 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 & Breakfast Association.

ARTICLES MAIN PAGE | CONTACT US | LINKS | HOME