Comparisons across Rural Brazil and the Philippines
The goal of this study was to identify when the rural poor are able to use state law, through the judicial system, as an instrument for progressive social change – that is, change that expands their opportunities for security, wealth, and voice.
The study sought to:
- Identify factors that enhance the legal capabilities of the rural poor and the conditions under which rural poor are able to use the legal system to claim constitutionally guaranteed rights or institutionalise interpretations of legal rules favourable to their interests – that is, to ‘make law’.
- Examine how the relationship between different dispute resolution arenas influences who use the state legal system, and for what types of disputes.
- Trace changes in who uses the court system in rural areas, and in the nature of the cases over a twenty-year period (1980-2000).
Research was conducted in Brazil and the Philippines over a three year period, using surveys of court cases in local tribunals, focus groups, structured interviews with local authority figures, including judges and community leaders, and case studies of episodes of land conflicts in which organised groups sought to use the legal system in the study countries.
The study combined intense fieldwork in eight rural municipalities of Brazil and the Philippines and comparative historical analysis. Comparisons between countries, regions within countries, and between the municipalities made it possible to explore the impact of different types of legal and political changes on the legal capabilities of the poor. The project, for example, examined the impact of recent agrarian reform legislation, the presence of social movements (the Movement of the Landless, MST) in Brazil and the National Coordination of Autonomous Local Rural People’s Organisations (UNORKA) in the Philippines, the democratic transitions of 1985 and 1986 (respectively), and several institutional reforms of the judicial system.
These are the findings from the case studies of episodes of land conflict that entered the judiciary:
1. Constitutional guarantees and legislation do affect the ability of the poor to access the legal system. Whether and how laws are enforced is contingent on a range of factors and varies over time but social movements and other collective actors play an important role. 2. The ability of movements of the poor to claim rights through judicial institutions is dependant on a number of factors, namely:
- Their capacity to engage in sustained litigation.
- This in turn requires the ability to (1) organise, accumulate needed resources, and negotiate with allies and legal experts, and
- (2) integrate legal action into broader political mobilization.
- Campaigns to disseminate landmark court rulings and new interpretations of settled law that favour the poor can have a long-term effect in changing how the law is applied by government agencies, and by local tribunals.
3. Local historic factors play a significant role in the capacity of the poor to engage in the legal system; in the specific cases of Brazil and the Philippines, the transition to democracy played a vital role in both countries.
These findings were as a result of surveys made of court cases:
1. They showed the substantial growth in use of the legal system by people who live in rural areas. 2. There are good reasons to believe, however, that this increase is related at least in part to the countries’ democratic transitions, which included enactment of new citizen constitutions, and to increases in the level of state presence – in terms of both public investment and consolidation of the administrative apparatus, and hence capacity to act – outside of the larger metropolitan areas. Higher state presence increases people’s access to information about rights and other legal-judicial information or administrative procedures; it alters the disputing opportunity structure by eroding the power of other systems of authority through which conflicts might be settled, hence making state law more attractive; and in contexts of high inequality, higher state presence erodes local tyrannies or authoritarian enclaves that keep people from accessing state law. 3. In the case of Brazil, the notable feature of the expansion of the use of law is the dramatic increase in women who bring cases and, related, in the number of family law related cases. 4. People in rural Brazil use state law far more than their counterparts in the Philippines, and people in São Paulo more than in Rio Grande do Sul. This is reflective of the very different disputing opportunity structure each faces and the relative extent of the shadow of the state.