The Law of the Stratified Society, and of Center and Periphery

The first period extends from the foundation of Chile in the sixteenth century to the early twentieth century. In this period, a law that combines elements of the stratified society with the gradual advances towards a functional differentiation towards mid-nineteenth century appears. Unlike the analysis of Robles (2006), we support that it is not possible to argue that it is a mere “stratified colonial society,” but in this

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period, advances concerning the functional differentiation of systems surface. That is, it is not a question of pure types in the forms of differentiation, but rather of a framework that considers both the advances of functional differentiation, and the stratificatory order.

The law in this epoch is permeated both by social stratification and by social stratification spatial distinctions of center and periphery. From the mid-sixteenth century, the Cabildos were, as we have previously noted, the most important legal and political institution of the colonial social order. The Cabildos clearly distinguished the “main neighbors” in their membership rules (Eyzaguirre 2004:

27ff), which then corresponded to the summit of the stratified structure at this epoch. The main neighbors were, at the beginning, Spanish encomenderos, but later bureaucrats and others administrative roles are also included. The Cabildo, thus, diffusely defined the capacity of certain persons and families in making legal decisions concerning the community.

Nevertheless, during the sixteenth and seventeenth centuries, there were spaces for social mobility, due to the scarcity of aristocratic lineages and the semi-functional nature of the conquest, in which a partial social mobility could happen based on royal honors, prestige and economic activities (De Ramón 2000).

Nevertheless, by the late seventeenth and early eighteenth century, the stratification sharpens and is reflected in the law. The “Royal Pragmatics on marriage of the family children” dictated by King Carlos III of Spain in 1776, prohibited marriage without parental consent. This led to the so-called “trials of dissent” (Vial Correa 2000). These trials were referred, in the core, to the ability of families to oppose to the marriage of their children when they considered that the future spouse was not worthy of the family and caused a prejudice to them. Ethnic prejudices abounded in those trials, as a possible African ancestry of the candidate (Vial Correa 2000: 72), but also the so-called unworthy jobs, such as mechanical in nature (Vial Correa 2000: 73).

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These trials show an attempt for maintaining the stratification by means of exogamy prohibitions. In a biological sense, this blockade of the freedom to choose spouses corresponds precisely to a principle of differentiation, as it is a rule that prohibits the reproduction between different social strata (Wortmann 2007: 108).

Besides this social stratification, there was a spatial stratification. The law was a matter not only affected by the social position of persons and families, but also by the spatial location in cities as centers versus rural peripheries.

In the Indies, by contrast, the land was more jurisdictionally “empty.” At the level of ordinary justice and administration, the authority of the king had been delegated to the cities, which were the fundamental nuclei of settlement and institutional organization. (Góngora 1975: 422)

The institutional history of Chile is essentially urban, which certainly does not mean that the social structure is always due to urban spaces. Nevertheless the law was concentrated in the cities, while the lands lacked jurisdiction, except for the authorities of the “towns of Indians” (Góngora 1975: 422). The cities were the center from which justice administered and dispensed. The law was thus differentiated in centers and peripheries with scarce contacts. The legal activity was developed in the centers and only in the middle of the seventeenth century did a shift in this situation happen, although at a level far form the central administration of the cities.

Until the mid-seventeenth century, the Chilean economy was based on mining. The high social status of the encomenderos came precisely from the use of indigenous labor force for mining, with which they paid taxes to the crown. Mining is losing importance in the late seventeenth century with the growth of agriculture, with the help of the increasing demand for wheat from Peru. Due to the concentration of land in rural areas and the formation of an economic unit different from the mining

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production, a new differentiated social order is established in rural areas, namely, the hacienda.

On the hacienda, there is a wealth of historical and sociological studies (cf. Cousiño

& Valenzuela 2012; Morandé 1987; Medina 2000; MacBride 2000; Góngora 1975;

Bauer 1971). All these emphasize its character as a main economic institution until the mid-eighteenth century. The haciendas included large farms and cattle areas, which belonged to a family. The hacienda had its own stratification, as noted by Godoy (2000: 57).

The highest status symbol is here the landowner and its family that concentrate wealth, power and prestige in their vast domains and their influence reaches the city. (…) They are followed by the employees of confidence: butlers, housekeepers or administrators; to greater social distance there are located the white or half-caste inquilinos [tenant farmers], from which the domestic service is recruited. The free farmhands constitute the last stratum of the hacienda.

In contrast to the big properties of other Latin-American countries, the Chilean hacienda was not intensively exploited. Its labor force was not based on African slavery, but on work remunerated in goods, land rights, or money. This type of labor work gave rise to the spontaneous legal institution of the inquilinage. The inquilinos, usually impoverished half-caste or Spaniards, were the dominant labor force in the hacienda. By means of a verbal contract, the landowner agreed to lease a portion of land in peripheral areas to the inquilino. This lease was paid by the performance of certain functions, such as surveillance, administration, or workforce.

The inquilinage was a type of contract celebrated without the incumbency of the urban legal order, and it established a set of duties and rights for the parties. That is, a set of normative expectations, which had, however, a binding validity only in the socially separated context of the social structure of the hacienda and which was judged asymmetrically by the landowner. It was, in fact, a law of the hacienda, which

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allowed the order of property and work, through regulations based on the stratified nature of the hacienda.

This division between center/periphery also had differentiation tendencies in other functional systems as correlations and, depending on the functional point of view, it is possible to observe an oscillation between center and periphery. From an economic point of view the haciendas were the production center and the source of wealth. The wealth of the haciendas was such, both in the rural and in urban areas, and was a source of status in both sides of the form. The problems of the hacienda, from this perspective, were largely concentrated in the political and legal systems.

Although the hacienda was a relatively autonomous social order, the increasing differentiation of the national State from these power centers constituted a problem for urban administration. From the point of view of the law, the “confidence” from which the legal relations were constituted in the hacienda (cf. Cousiño & Valenzuela 2012; Morandé 1987; Rodríguez 2007) was unable to densify in the urban bureaucratic structures. The verbal contracts between inquilinos and landowners were only binding in the stratified order of the hacienda.

In the Chilean stratified society, we therefore find a dual legal system with different development grades. On the one hand, a highly bureaucratized and proceduralized urban law, which, although it had incipient universalist pretensions, was permeated by the prejudices of its time; and, on the other hand, a rural law, based on the validity of the stratified social structure of the hacienda, had scarce organizational development. Both systems had little to do with each other. While in the cities, courts were organized, procedures were dictated and new legal developments took place, the hacienda law referred primarily to the binding capacity of the contract, to the resolution of specific conflicts and occasionally to the contact with the urban administration through the police. Although both systems solved the problem of the maintenance of normative expectations, their hetero-orientation was very different.

While urban law was gradually constructed along with the political system, the law of the hacienda has a purpose that primarily facilitates economic activity.

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During all this period, this double movement of the Chilean law, between the social distinctions originated by the principles of stratified differentiation and the dynamics of differentiation between center and periphery, can be observed. The element that allows the identification of a threshold between this type of law and the following form of differentiation is precisely the weakening, not of the stratified order by itself, but of the dissolution of the form center/periphery. The duality of urban and rural legal systems will continue until the decline of the economic activity of the hacienda. With the decline of the hacienda, the barriers for the reproduction between urban and rural legal communications are diluted. This occurs due to a number of factors that must be carefully analyzed.

4.2.2. The Politicized Law of the Functionally Differentiated Society with