By Alvin Starkman, M.A., J.D.
Based on an example from a Oaxacan village within the Zapotec culture, a convincing case can be made for utilizing a couple’s mothers and fathers to resolve spousal disputes, rather than western courts. I’ll draw on the literature of social anthropologist Laura Nader, and my experience as a Canadian family law litigator. I want to confront western world ethnocentrism, which suggests that we know better than what “primitive” societies do to resolve disputes.
Let’s begin with how Ontario has tried to resolve allegations of spousal abuse. We’ll then take a look at an “unsophisticated” Zapotec village system, in order to consider the more appropriate method for advancing social and economic goals and values. While one might disagree with my conclusion given the politically charged nature of the topic, keep the thesis in mind.
About two decades ago the provincial government directed that once an allegation of spousal abuse had been made, criminal charges could not be withdrawn, and plea bargains based upon what the couple wanted were out of the question. Criminal trials were to run their course, except if a guilty plea was entered, in which case there would be a range of predictable results, including a criminal record. If the verdict was not guilty, the family could re-unite – until the next incident.
Upon receiving a complaint, the police would haul the alleged abuser off to jail pending bail, or require he leave the home while the victim and children were encouraged to remain. A shove or a push within the context of a heated argument and a precipitous 911 call would set in motion an unstoppable freight train. A criminal complaint made by a vindictive spouse, at times egged on by an overly zealous lawyer, provided a fast and inexpensive interim resolution.
Family court proceedings progressed concurrently, with custody and support orders made. The possibility for reconciliation diminished daily; spouses could not communicate with one another except through lawyers. Old school judges believed that their work was not to foster compromise but to decide between diametrically opposed claims. The parents of the litigants would rally around their own children. Conflict escalated with affidavits containing the nastiest allegations often based on hearsay and half-truths. Even court-mandated mediation was positional and contextualized by the goal of “winning.”
The criminal court result became inconsequential within the broader context of the separation, the precipitating event all but forgotten. Back in family court, the literature suggested to judges that joint custody ought not be ordered except in the rarest circumstances, fathers relegated to alternate weekend surrogates and babysitters. Restraining orders gave one spouse power and leverage over the other. And women became permanently impoverished relative to their former spouses, despite equal division of assets and alimony orders
Let us turn to that indigenous Oaxacan village, where material wealth and intra-village availability of sexual partners were conspicuously absent. There was, however, a complex system of intricate social groups. There were two legal systems able to resolve spousal abuse or abandonment, the wife typically being in the more powerful position of being able to choose. She would decide based on specific strategies, that is, which mechanism to initially pursue, without foreclosing her ability to utilize the other.
In the first instance, the wife 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 home or moving in with her parents, before or after enlisting the families’ assistance. Both sets of parents, could make decisions regarding all aspects of the relationship, and the precipitating event in particular. If the familial system failed to bring about a resolution with which the wife agreed, she could appeal to the community court, an annually elected president and judge. It could correct the husband’s behaviour by penalizing him. The court was not foreclosed from considering reconciliation. However, the wife typically only sought out the court to affirm severing the relationship.
Though not precluded from doing so, the husband rarely applied to the community court, except if the return of bride-price money was sought. He would usually apply to the wife’s parents (often with input from his parents) for a resolution. Without reconciliation, he would often search for a new partner in the village, in vain, or leave the community. The wife retained the option of forcing him to appear before the court.
Community court officials resolved most cases if the families were unable to do so. The wife, in appealing to this court, perhaps after the parents had failed to facilitate a resolution, kept all her options open: reconciliation, simply severing the relationship, or severing with penalty.
Both Ontario and Zapotec systems empowered the victims and made the perpetrators pay. Beyond this, the similarities end. I suggest that the Oaxacan village mechanisms serve both individual and societal interests. The Ontario courts did everything possible to inhibit reconciliation and non-confrontational issue resolution. Though mediation was mandatory, by the time it arose positions had become entrenched. Family was used to fuel the flames, in stark contrast to its utility in rural Oaxaca. The Ontario process was slow, even if support and division of property were not issues.
Economics is a valid consideration in both systems. But the approach and how financial matters impact on resolution options are strikingly different. In the Zapotec village, relevant factors for third-party decision-makers dealing with the issue of reconciliation include availability of scarce resources such as food and sexual partners, parents as a support system, and family inheritances. While it is hoped that Ontario family law lawyers always consider such factors when negotiating for clients, the courts, at least through the 20th century, typically did not.
While both the Ontario system and the dual Zapotec options appear to acknowledge the same desires and values for the individual and society, our modern sophisticated western world seems to be floundering. In contrast, this one micro-society, at least, continues to resist changing toward a formal state system in favor of staying focused on the particular situation at hand. Now, using a more relativistic cultural lens, consider your preconceived notions of “primitive” cultures and the concept of employing mothers and fathers to resolve marital disputes. Who best to know the spouses and their interests?
Alvin Starkman runs Mezcal Educational Excursions of Oaxaca (www.mezcaleducationaltours.com).
The foregoing should not be relied upon as constituting legal advice or opinion.
By Alvin Starkman, M.A., J.D.
It is inaccurate to suggest that mezcal production in Oaxaca is by and large a man’s job or trade and that there are very few palenqueras, that is, artisanal mezcal distillers who are women. The female of the species makes mezcal. Women’s involvement in the process is essentially determined by the same criteria used to understand sex roles in other vocations in rural Oaxaca: strength and stamina, traditional child-rearing, and other household responsibilities.
Palenqueros (using the more generic term for male and female producers of the spirit) typically do not read books or watch YouTube videos to learn how to make the iconic Mexican spirit. They learn from their fathers, their uncles and their grandfathers, just as their relatives before them, over generations. Young girls, just as young boys, begin learning the trade virtually from infancy; watching, helping, and fantasizing their futures as palenqueros while in the course of interacting with their friends and siblings. I frequently witness this acquisition of knowledge.
Customarily women raise families, dating to the hunter and gatherer division of labor in humankind. Mothers remained close to home with the children, gathering fruits, nuts, berries, etc., and preparing meals, while their male partners were off on extended hunting expeditions, requiring that they be fleet of foot, and at times requiring more physical fortitude than women can muster.
With mezcal production, often the fields of agave under cultivation are far from home, and if wild maguey is sought, the palenquero is frequently required to walk a couple of hours into the hills before encountering his bounty. The same holds true for sourcing firewood to fuel ovens and stills. Furthermore, lifting the piñas (heart of the succulent used in production) can require more strength than women exhibit. Although the palenquero will sometimes cut the pinas into smaller pieces while still in the field, whether whole or halved they can weigh hundreds of pounds and must be lifted into trucks or onto donkeys or mules.
Once back at the palenque (the artisanal mezcal distillery), which often adjoins the homestead, women’s work making mezcal begins in earnest, although still subject to their priority obligation of preparing meals and tending to the children. Women are often an integral part of the baking, crushing, fermenting and distilling processes, working alongside and even directing men.
Back at the palenque, the task of cutting the agave into appropriately sized pieces for baking usually falls to men, once again for reasons relating to stamina and strength. Splitting logs and loading the oven with large, heavy tree trunks is typically men’s work as well. But when it comes to filling the oven with stones, wet bagazo (waste fiber from distillation), piñas, tarpaulins and earth, women participate as equals to men.
Even in the face of whatever remnants persist of the perceived macho mexicano, once the rocks in the oven have been sufficiently heated, it is important to second as many helpers both male and female to get the work of filling and sealing the oven so it is airtight.
Women as well as men remove the piñas from the oven once the carbohydrates have been converted to sugars, or caramelized. Later on, in preparation for a subsequent bake, once again individuals of both sexes empty the chamber. The women are the daughters, daughters-in-law, mothers, partners, nieces and granddaughters. I regularly see them all participating. They are as much a part of the process as their male counterparts, including being charged with decision-making.
When crushing the baked agave is done by hand, then yes, almost exclusively it is men who attend to this most arduous task. But the remaining tasks are often shared equally: working the horse; determining when the pieces of maguey have been sufficiently pulverized; loading the receptacles for fermenting, whether they be wooden slat tanks, in-ground lined pits, bovine skins, or something else; and distilling. Women can decide upon the optimum ABV (alcohol by volume) and how to achieve the best possible flavor.
But let’s assume that the palenquera is also charged with typical household chores. including family meal preparation and raising the children, including attending to their health, education and general welfare. She cannot, of course, be reasonably expected to look after all this, as well as partner with her husband in directing and attending to all of the tasks required in mezcal production. However upon hearing the shout or receiving the phone call from her male partner, cousin, son or father, she’s there, as needed.
In addition, she is the one remaining at home in charge of sales. She typically also prepares comida for the men, and in fact it is customary, when the home is not alongside the palenque, for women to bring food and drink for those (men) who are at some stage of producing the spirit.
Economic necessity on occasion dictates that a woman, to almost the complete exclusion of men, might become a palenquera. She plants, tends, cuts and harvests maguey; splits logs’ and crushes by hand. In one case a husband/palenquero died suddenly in a car accident, leaving his wife and four young children. She became a palenquera in the traditional sense, doing everything previously done by her late husband, in addition to raising the children.
In another case a single mother’s two children left home for the US in their late teens, leaving her and her mother as the householders. She had learned mezcal production from her grandfather. Currently she has a reputation for being one of the very few palenqueras who does it all, producing one of the finest mezcals in Oaxaca. She directs her underlings, that is, male cousins and neighbors, as to how to produce mezcal based on her exacting recipe. The foregoing are two exceptions to the tradition of both men and women working together, cooperatively with members of their families and communities.
A shift in paradigm is both warranted and strongly suggested when it comes to our perception of the industry being mainly within the purview of men. Women deserve to have their proper and important place acknowledged in the world of Oaxacan mezcal production.
Alvin Starkman operates Mezcal Educational Excursions of Oaxaca (www.mezcaleducationaltours.com).