The Politicized Law of the Functionally Differentiated Society with

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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

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which classes are configured and how these adhere to different logics from these dominants in pre-modern stratified society.

The class concept, although it refers to a manifestation of stratification, has some specific characteristics. First of all, the ‘functionally differentiated society with class structure’ regulates the problem of the distribution in a different way from stratified society. While in stratification, unequal communication is regulated through interaction (that is to say, through the ‘presence’ in the communication), in the functionally differentiated society with class structure, the inequality and the distribution cannot be treated at this level:

Social classes are therefore strata, i.e. groups which, considering a difference between better and worse, must renounce to regulate the interaction. (Luhmann, 1985:

131)¹¹⁹

With such ‘renounce to regulate the interaction,’ inequality is universalized and is generalized beyond the presence of the speakers. Then the problem of how to justify an unequal distribution in a society of equals, opposite a stratified society, where the problematic was reversed, arises i.e., it had to justify an equal distribution in a society of unequals.

The stratified society is, meanwhile, a society of presences, which appear steadily in interactions. With the shift to functional differentiation, the requirement of referral to presence disappears and the problems that were earlier treated at interactional level can be moved in an abstract way towards functional systems and organizations.

For this reason, societies structured in social classes allow major freedom that stratified societies, since individual roles allow for vertical mobilities and horizontal diversities, which are prohibited or have diverse obstacles in stratified societies. The

119 “Soziale Klassen sind demnach Schichten, also Gruppierungen im Hinblick auf eine Differenz von besser und slechter, die darauf verzichten müβen, Interaktion zu regulieren.”

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social inequality in the functionally differentiated society with class structure is reproduced by means of systemic mechanisms and not by means of familiar or stratified ascriptions.

According to Luhmann (1985: 145), the systemic mechanisms around which social classes would form are fundamentally three, namely: money, career, and prominence, which structure, in turn, three social classes: the economic, the organizational, and the prominent. The classes depend on parasite specific systemic mechanisms. After payments in money were introduced as symbolically generalized communication medium, the rich class depends on them to maintain its inequality position; once organized in chains of decisions, political power must resort to procedures and legal resistances to physical violence to preserve the domination;

and the prominent class can only maintain its status based on the complex network of communications that maintains them as a theme in the communication. The semantics of the classes, in the interim, are only possible in a functionally differentiated society, where classes have no function and where the inequality in the distribution itself may only appear transverse to the society, while this specifies functions of a partial way.

This form of differentiation emerges in Chile along with the loss of centrality of the hacienda. The social stratification in this period experiences a significant shift due to the change in the form center/periphery. It does not exactly cause a radical change in social stratification, but centers and peripheries are repositioned. If, in the previous period, the hacienda was the core of organization, now it is the city.

In the mid-nineteenth century, a number of institutional changes that had structural consequences for Chilean society happened. The independence from Spain in 1810 was followed by an eight years’ war that concluded with the withdrawal of the Spanish troops. After this experience, the first attempts of organization of the Chilean State occur. In 1811, the abolition of slavery is decreed and in 1813, the same occurs with the titles of nobility. The greatest social mobility came,

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nevertheless, by changes in economic activities. The economic activity of the hacienda declined mainly due to its lack of productivity, which by the end of the nineteenth century was no longer able to meet the domestic demand (Godoy 2000:

225). The center of economic activity shifted to mining and with it begins the first great migrations to the cities and to mining centers of northern Chile. Along with this, the commerce and banking activities developed.

By the late nineteenth century, the problems of misery in the cities, which gives way to the “social question,” (Orrego Luco 2000) and to the first strike of workers in 1890, exacerbate. The semantics that accompanies the historical and sociological diagnoses of this period is the so-called “moral crisis” (Recabarren 2000, Mac Iver 2000, Jacobet 2000), which denounced the loss of unity and social integration of the country.

Indeed, throughout the nineteenth century, changes in social stratification are produced, which no longer had the marked presential nature of the hacienda.¹²⁰ For this reason, it is more appropriate to speak of ‘social classes’ and not of ‘strata.’

Owners of mining companies, banks, and other businessmen are now the privileged classes. Alliances occur between these groups and the former landowners, although the latter gradually lost their power, while wealth and ostentation takes a specifically urban shape: “The landowners tend to move away from the land to settle in Santiago or in Europe, living of the incomes provided by its administrators and tenants” (Godoy 2000: 171), which produces a gap in the face-to-face relations between them and the inquilinos, thus weakening the social structure of the hacienda (cf. Cousiño & Valenzuela 2012; Morandé 1987).

The new social classes are not yet regulated, as rural strata, by relations of confidence based on interactions, but by the functional ties of private enterprises or

120 In the sense of “sociability” of Cousiño and Valenzuela (2012) and also in the sense of

“interaction systems” noted by Luhmann (1975a).

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the State administration. These changes contributed to the development of the Chilean legal system. After the independence of the country, diverse constitutional essays appear and a number of acts that tend to organize the State and its institutions are issued, as well as financial and commercial activity. In 1860, the banking law is enacted and in 1865, the commercial code; in 1883, the law of secular cemeteries; in 1884, the law of civil marriage and the civil registry office is created for that purpose; in 1855, the civil code is issued; and in 1881, the organic law of courts (cf. Eyzaguirre 2004: 126ff.).

The old urban/rural duality of law begins to disappear due to a major functional specialization of urban law. Indeed, the social structure of colonial stratification suffers little changes with the independence (Veliz 2000: 221) and at administrative level there was no significant revolution, but rather a gradual change. The main shift in the law of the functionally differentiated society with class structure is the increasing problematization of the internal inequality.

Lacking the legal validity provided by the authoritarianism of the landowner, urban law can only resort to the procedural validity of the state bureaucracy (Luhmann 1983) and since the law lacks elements to treat the new inequality that arose by the mining and commercial heyday, the problems ended in deep political crises and explosions of violence. In the early twentieth century, the situation has become more acute. The strike of the dockworkers in Valparaiso in 1903, the strike in Antofagasta in 1906, and the massacre at the Santa Maria school in Iquique in 1907 are the result of a policy of violent repression against the lower classes of miners, workers, and wage earners. The legal and political systems were unable to address the problems of the lower classes. In a certain way, the disdain of the politics of the nineteenth and early twentieth century for the lower classes was an attempt for closing the structure of classes – in the absence of a rule of closing through kinship relations, as in the seventeenth century - by means of a rule of exclusion: the exclusion of the lower classes of political participation, economic well-being, and access to the justice.

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The situation is clear, however, as regards the economic system. From the mid-nineteenth century until the early twentieth century, the pulperías, in which workers exchanged products by means of special coins received along with its salary, were established in saltpeter mining in northern Chile. These special coins only had value in the mining industry and only for the purposes stipulated by this industry, without being able to be replaced by money. That is, an organizational barrier interferes with money payments, which was intended not only to further enrich the owners of the mines where the pulperías were operated, but it also had, as a purpose, the partial exclusion of the workers on the circulation of money.

The formation of social classes came under the wing of these exclusions, which took shape primarily as economic classes and secondly as organizational classes. The gradual introduction and generalization of money in the cities had, as a consequence, the growth of an economic class different from the agrarian structure, which was rather dedicated to speculation and financial capitalism (Godoy 2000:

170). In the other side the impoverished and marginal masses, which survived in conditions of misery and neglect, remained in the cities. Inclusion, in this case, was regulated by access to money.

With regard to organizational classes mediated by careers, a gradual advance of this class is primarily produced by the growth of the public administration and the industries, which, in the twentieth century, will give rise to the so-called ‘middle classes’ and they, in turn, produce a change in the structure of political parties (Pregger-Roman 1983: 39). As noted by Góngora (1981: 58), it was not a bourgeois class but a class “of university professionals and bureaucrats, or of provincials owners.”

How does the law react to this change in the principles of differentiation? Only from its contact with politics does the law react to the sharpening of class conflicts.

The constitution of 1925 is undoubtedly the biggest change in this regard, but also

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worth mentioning is the so-called “social” and labor acts from the early twentieth century, as the act of working rooms of 1906, the act of industrial accidents of 1916, the labor code of 1931 among others (cf. Palma 2005: 348ff). The feature that characterizes the law in this period is a politicized law, which is located in the transition between a stratified law and marked by the duality center and periphery, and an urban law centered on the State and its administration, which is increasingly responsible for the problems in the political system. This excessive instrumentalization of the law by politics for much of the twentieth century has been characterized by Mascareño (2004) as “dedifferentiation” between law and politics, and as “politicization” by Cousiño and Valenzuela (2012).

Whereas the politicized law of functionally differentiated society with class structure was in force, the problems of inclusion and exclusion in law were regulated mainly by means of political guidelines. The political affiliation and affinity increases or decreases the probability of compliance of normative expectations, whether with regard to goods produced and distributed by the State or by the repression of the State against its enemies (Mascareño 2010). The form inclusion and exclusion are not closed with regard to the form hacienda/city as in the stratified law, but by means of the form ally/enemy that comes from the political over-coding of the law.

This over-coding develops gradually with the political patronage systems of the twentieth century and enters a crisis in the 70’s due to the “politicization” of society (Cousiño and Valenzuela 2012) and the “crisis of complexity” produced by the coup d’état in 1973 (Mascareño 2003b). The military dictatorship imposes in turn the logic of a politicized law expressed in denials of justice against the human rights violations.

Until the late twentieth century, it can be argued that a politicized law tributary of a functionally differentiated society with class structure predominates in Chile.

Nevertheless, as we will show, it is not a change in the principle of differentiation of classes (which has not yet been totally overcome) what, by the end of the twentieth

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century, causes a change in the form of differentiation of the law, but the relations between law and politics.