ISSN 1062-7421
Vol. 12 No. 3 (March 2002) pp. 143-146.
EMPOWERING WOMEN: LAND AND PROPERTY RIGHTS IN LATIN AMERICA by Carmen Diana Deere and Magdalena Leon. Pittsburgh:
University of Pittsburgh Press, 2001. 486 pp. Cloth $55.00. ISBN: 0-8229-4161-9. Paper $24.95. ISBN: 0-8229-5767-1.
Reviewed by Joaquim B. Barbosa Gomes, Rio de Janeiro State University, School of Law.
After their independence from Spain and Portugal in the early nineteenth century, most Latin American states, based
upon the French and U. S. experiences, promulgated new constitutions of their own in which the principle of equality
invariably was one of the main features. In the twentieth century, following the same path, they adhered to almost
all human rights covenants sponsored by the United Nations, including the Convention for the Elimination of all
Forms of Discrimination against Women (CEDAW). However, the problem for Latin America has been the gap between
formal recognition of rights and actual implementation. This book, as the authors put it, is about the disjuncture
in Latin America between men's and women's formal equality before the law and the achievement of real equality
between them, an issue well illuminated by the gap between women's property rights and their actual ownership of
property. Extremely well-documented and
presenting multiple insights on the law of the Latin American states, especially the intersection between law and
gender, the book is coherently divided into ten chapters as follows: 1) the importance of gender and property;
2) gender, property rights, and citizenship; 3) gender-exclusionary agrarian reform; 4) building blocks toward
gender-progressive change; 5) engendering the neo-liberal counter-reform; 6) the struggle for women's land rights
and increased ownership of land; 7) in defense of community--struggles over individual and collective land rights;
8) inheritance of land in practice; 9) women property owners--land titling, inheritance, and the market; and 10)
land and property in a feminist agenda.
The introductory chapter, "The Importance of Gender and Property," sums up the core of the book. The
inequality between men and women in Latin America is illustrated by the unequal distribution of land property.
Demonstrating why such inequality is so deep in Latin America is the main purpose of the study. The authors reach
their objective by arguing that gender inequality in land ownership in Latin America is "attributable to the
family, community, the state, and the market." Thus, to make their point, Deere and L,on investigate the
principal means through which ownership of land is acquired in the region, that is, by inheritance, adjudication
by the state, and purchase in the market. Then, in a path breaking flow of legal details and cultural nuances,
they demonstrate that gender inequality in land ownership is because of male preference in inheritance, male privilege
in marriage, male bias in state programs of land distribution. In other words, gender inequality in the land market.
Among the best features of the book is Deere and L,on's comparative approach to the status of married women in
Latin America and their counterparts in the United
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States and England in the early nineteenth century. In chapter two, "Gender, Property Rights, and Citizenship,"
the authors put forth some interesting comparative and historical perspectives on the property rights of women.
Page 32 begins by stressing that "notwithstanding different legal traditions, in the early nineteenth century
married women in Latin America shared a similar status to their counterparts in the United States, England, and
most of continental Europe: they were subject to the authority of their husbands in almost all of their affairs."
Nonetheless, married women in colonial Latin America had greater bargaining power within marriage than did their
counterparts in the United States and England. Under the Iberian codified tradition, in contrast to British common
law, married women could own, inherit, and will property; moreover, inheritance norms favored gender-equitable
distribution of property. A married woman's fall-back position in Latin America was thus much stronger for, in
case of separation or widowhood, women were entitled to the property they brought into the marriage as well as
one-half the common property--possibilities denied under common law. Over the course of the nineteenth century,
these patterns were reversed. Married women in the United States and England gained greater disposition over their
own property and incomes while the property rights of their counterparts in Latin America failed to improve much
with independence.
Chapter two also presents an in-depth, accurate and extensive analysis of the marital regimes applied in Latin
America both in colonial era and after independence. Noteworthy is the abundance of details with which the authors
describe individual marital regimes under Portuguese and Spanish rule in colonial time and in modern times. In
fact these regimes were quite similar until the early nineteenth century and continue to be until now. Masters
in the art of nuances and the comparative approach, the authors present a thorough description of the choices allowed
a woman in terms of marital regime, exposing with clarity the upsides and downsides of individual marital regimes.
Thus, while men's privilege and their absolute control over the household assets is a permanent trait of the marital
regimes of both
colonial era and post-independence, these old regimes had some aspects that were quite favorable to women. Widowhood,
for instance, was one such case. Should the husband die, the widow was entitled to retain half of the common property,
no matter how much she had brought to the marriage.
Also of particular interest is the authors' analysis of the position of married women in individual countries like
Brazil, United States, and England. In Brazil, the situation of married women was similar to that of their counterparts
in colonial Spanish America, but the default regime governing marriage was slightly different: the full common
property regime prevailed, which was not the case in most other countries in the region. With regard to England,
a classical theorist of the British common law, Blackstone, is evoked to illustrate women's legal status. He stated,
"By marriage, the husband and the wife are one person in the law ... the very being and legal existence of
the woman is suspended during the marriage, or at least is incorporated into that of her husband under whose wing
(and) protection she performs everything." Concerning the United States, the study stresses the "merger
of identities" doctrine, which governed family affairs in most American states until late nineteenth century,
stating that,
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"upon marriage the wife became a legal non-person. With respect to property, wives lost the right to manage
any real estate they brought into marriage. Husbands gained not only managerial rights but also complete ownership
of any other kind of property that had belonged to the wife. Married women could not make out a will. Thus upon
a wife's death a husband automatically acquired ownership of her real estate. They also could not inherit property
in their own names, and hence a wife's inheritance became her husband's property. Married women could not sue
or be sued but rather had to rely upon their husbands, who became the legal owner of any damage awards won by her
suit. Moreover, any wages earned by a married woman belonged to her husband. In case of separation or divorce,
wives were not automatically entitled to a share of the property acquired during marriage nor to the gains derived
from any property they had brought into marriage. It was this latter point, in particular, that made the position
of married women so much more onerous in the early nineteenth-century United States, as compared to Latin
America, for a married woman in the United States had very little bargaining power over an abusive husband."
Despite these excellent insights comparing women's rights in England, United States and Latin America, the study
is somewhat disappointing in explaining why the position of Latin American women is far less favorable in the twentieth
century as compared to their situation in the early nineteenth century.
The focus of chapter three is agrarian reform in Latin America and its ostensible bias against women. As a product
of the Alliance for Progress, an aid program launched by the U. S. government in the context of the Cold War, this
reform aimed at mitigating the social effects of the devastating concentration of land property in the region,
especially in countries like Brazil, where some features of the agrarian reform were consolidated in the constitution
promulgated in 1988. The authors sum up the essence of the agrarian reform on the exclusion of women. On page
99, they state, "Reformers intended to benefit peasant families, assuming that these processes were gender
neutral; instead, they ended up being gender-biased, primarily benefiting male household heads.... Women's participation
ranged from negligible or low (in Chile, Ecuador, Honduras, and Peru) to a high of one-third of the beneficiaries."
At the international, national, and local levels, gender and land rights have become a very important issue, forming
the so-called field of women in development (WID). This field provided the framework that has oriented the agenda
of international agencies and governments with respect to gender issues in the last decades. The WID field has
become very influential in association with the consolidation and expansion of the international women's movement,
which, by its turn, has been pushed forward by the U. N. initiatives, especially the United Nations Decade for
Women and the four international conferences on women.
How the neo-liberal counter-reforms of the 1980s dismantled the agrarian policies adopted by Latin American states
in previous decades is the focus of chapter five. Favoring individual over collective property and individualization
of land rights over collective land rights was one of the main features of these counter-reforms, which
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ended up in impoverishment of rural families in most countries of the region thus affecting rural women who are
the poorest among the poor. In the 1990s, maybe as a reaction to the neo-liberal counter-reforms, gender-progressive
change has come about with the support of the combined action of four groups of social agents: women active in
social movements (urban and rural); women in the state; women in formal politics; and international agencies.
This gender-progressive agenda has been actively promoted in countries like Brazil, Colombia, Nicaragua and Honduras,
especially through joint allocation and titling of land to couples instead of household heads (Chapter six).
EMPOWERING WOMEN also provides insightful information about the rise to dominance of the neo-liberal paradigm in
Latin American and its coincidence with
the consolidation of both women's movement and democracy, especially in Brazil and the Southern Cone.
Chief among my critical comments is the book's failure in not investigating the impact of judicial review on some
important topics discussed throughout the study. In Latin America, especially in Brazil, sometimes judge-made
law advances what the legislature's will had consolidated only decades later. This was the case, for example,
in Brazil, of some aspects of women's inheritance regime, social security regime and pension regime for consensual
couples.
In sum, the authors thoroughly succeed (see p. 330) in demonstrating how far the notion of women's formal equality
before the law is from achieving gender equality in practice. Their study is very persuasive in showing the progress
that has been made in the legal realm, as well as in recognizing that a considerable amount of work still has to
be done in order to secure women with the control of productive assets, especially land property, which is the
most effective means to reduce poverty that affects them greatly.
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Copyright 2002 by the author, Joaquim B. Barbosa Gomes.