CHAPTER SIX
CODECE'S LEGAL STRUGGLES
Introduction
CODECE emerged as an active response to a visible threat to the well-being of the local community of San Antonio de Escazú. Large-scale construction in the Mountains of Escazú had direct negative effects on the health and economy of local residents. CODECE became the social space where collective action against these threats was organized and mobilized. Once CODECE was able to stop Revilla and his concrete threat (pun intended), the organization's challenge then became to maintain and expand its membership in order to continue to confront a host of other potential threats, invisible though they were at the moment. One of the major ways CODECE attempted to achieve community empowerment to protect the environment, and later to implement sustainable development, was through the appropriation and also the transformation of the legal system, a form of institutionalized cultural capital. This is the process I deal with in this chapter.
I already noted that CODECE was born out of the previously created farmers' co-op, forming a new institutional arrangement and a new collective identity which was mobilized to confront a particular set of threats. As Cohen and Arato (1992:562) have observed, "newly achieved collective identities... constitute the condition of possibility of the emergence of new institutional arrangements, associations, assemblies and movements." Once CODECE was established, its challenge became to achieve some level of permanence, to reproduce itself in order to confront a newly discovered array of threats to the local environment and community. It did so in part by resorting to the formal institution of the law and addressing the legal aspect of the Protection Zone of the Mountains of Escazú. CODECE sought to make this cultural capital more widely accessible first by democratizing the application the law, and then by seeking to transform the laws themselves in radical ways that would make the contents of the law more democratic, allowing for the empowerment of the local community in defining its environmental destiny.
Cohen (1985:670) has described this type of action, common among new social movements, as "self-limiting radicalism". As I will explain in this chapter, CODECE sought more democracy, but within the constraints of the established institution of the legal framework. CODECE sought to expand spaces for social autonomy by attempting to create a law for communal management of the Protection Zone, instead of attempting to abolish private property as a structure of domination. It sought to redraw the boundaries between the public and the private spheres, but did so within the formal structures which were culturally and politically available to it as a collective social actor. I maintain, however, that CODECE's radicalism was not only self-limiting, but in great measure was also limited by the cultural, economic and political context, as well as by the social actors that dominated this context. The relative immutability of the institutionalized cultural capital of the legal system in this case confirmed what several authors have pointed out (Bourdieu 1986; Hirabayashi 1993:127), namely, that cultural capital may become "an important, if subtle, resource that facilitates the reproduction of the overall class structure".
As I explained in chapter four, Costa Rica is an eminently "legalist" country. Its independence from Spain was not waged in the battlefield, but was granted in a legal document. The Political Constitution is a legal document that holds the highest authority to condition all actions in the nation. In contrast to its sister countries in Central America, Costa Rica's political stability is founded on its legalist tradition and culture. It was this context that conditioned CODECE's exercise of power as a new collective social actor. Once empowered as a collective social actor, CODECE sought radical change within the legal framework.
In spite of these self-induced and externally-imposed constraints, I still consider CODECE's efforts as revolutionary, concurring with Epstein (1990:37), who views direct action movements as revolutionary, where "their understanding of revolution does not revolve around seizing state power, [but] gives as much emphasis to changing culture as it does to transforming political and economic structures." CODECE engaged in both endeavors. On the one hand, CODECE attempted to change the environmental culture of its members and of the local community, and on the other hand, it also attempted to transform the environmental legal structures and practices that conditioned the local community's relationship to the environment. CODECE tried to change the environmental culture by promoting the concept of a Communal Forest in the Protection Zone, where common interests and common responsibilities were emphasized. It also attempted to change the existing environmental legal structures and practices, first by fomenting a democratic application of the law, second by pushing for a transformation of the law, and finally, by attempting to synthesize these efforts in a Regulation Plan for Escazú.
As I explain here, CODECE's efforts in the legal domain are ongoing. Yet, I attempt to make an evaluation of its achievements in this area. Cohen and Arato (1992:562) suggest that "the success of social movements... should be conceived... in terms of the democratization of values, norms and institutions...which stabilize the boundaries between lifeworld, state and economy." I argue to the contrary, that the measure of CODECE's success lies in its ability to de-stabilize the fixed boundaries between the "lifeworld" it envisions and the hegemonic legal institutions that constrain CODECE's utopia.
Appropriating the Application of the Law
When CODECE was still only a Committee for the Defense of the Mountains of Escazú, its initial members discovered, not only numerous threats to the mountains, but also learned of the existence of a decree protecting these mountains. In 1976 a large part of the Mountains of Escazú, which included the higher regions of six counties (Santa Ana, Mora, Acosta, Aserrí, Alajuelita and Escazú), was declared a Protection Zone. It was then expanded in 1983 to cover an area of over 7000 hectares. The legal description of a Protection Zone was that it served primarily "to protect the soil, regulate the hydrologic cycles, conserve the environment and significant watersheds" (Salazar 1991:159). To achieve this, certain norms were established within Protection Zones, including regulations against cutting trees 50 meters on either side of rivers. However, unlike National Parks, which by law had to be acquired by the State to become public lands, the status of Protection Zone included the presence of private lands. The Mountains of Escazú were virtually all held privately by many small and some large landowners, making enforcement of land use regulations enter the domain of private property for public benefit.
Having discovered that the Mountains of Escazú were protected under the status of Protection Zone, the members of CODECE attempted to become a visible force in the community, committed to enforcing the legal statutes of the decree that protected the mountains. In order to reaffirm the law that heretofore had been ignored, CODECE sought to detect any irregularity that threatened the environment of the Mountains of Escazú. CODECE formed a vigilance committee that periodically hiked in the mountains in search of anyone who might commit an infraction against Protection Zone regulations. The enthusiasm that this acquired moral authority generated in some members of CODECE made them carry out actions that quickly caused resentment among other local residents.
"We organized vigilance committees," Romano explained one day at his house when I asked him about this early period of CODECE. "When they found bird-catchers, the vigilance committee confiscated their cages and freed the birds. When they came upon cattle grazing in fields within the Protection Zone, the vigilance committee chased the cattle down the mountain. When they found a land owner cutting trees next to a stream, the vigilance committee sent word to the Rural Guard of Escazú to come and fine the man. Rodolfo would take me in his pick up truck and we would ride around the mountains keeping our eyes peeled. The others, about a dozen people that formed CODECE at the time, would take turns on the vigilance committees in the Protection Zone. We were so enthusiastic that the mountains had a protected status, that we denounced people as a way of making the law known to everybody and respected by everyone. The local farmers began to realize there was a special Protection Zone law in the mountains where hunting, as well as cutting trees, or burning brush, or grazing cattle, was prohibited. The result was that the number of large-scale burnings and tree cuttings dropped, but many small farmers also began to resent CODECE when we denounced them. But we also denounced large landowners and powerful people. We denounced Beto Ruiz, a wealthy lawyer who cut down secondary forest on his land to plant Jaúl for commercial extraction. Another was Gerardo Busowsky, who leveled the mountainside along the Hoja Blanca road to build a residential complex, causing mud slides downhill, threatening smaller homes. But the legal denunciations against powerful people were all lost. In some, because of technicalities, in others because of judges who were their friends. We were quite ingenuous then, and we denounced small and large alike, but we discovered that the Protection Zone laws did not really touch the rich people. They were able to avoid the denunciations, or else pay fines that for them were insignificant. The biggest problem, though, was that we were creating antibodies ([1]) among the community, with our denunciations of small farmers." (Field notes, Saturday, February 5, 1994).
During the interviews I carried out in 1992 and 1993 among farmers in the Mountains of Escazú, I discovered the presence of some of these "antibodies" Romano referred to. They appeared in multiple versions. Among the statements I recorded were that CODECE was a branch of the National Forestry Directorate with "authority to arrest" (Antonio Solís, Interview, June 16, 1992); that "CODECE only picked on the humble folk and left the rich alone" (Aquilino Arias, Interview, April 14, 1992); that CODECE had "released venomous snakes" in the mountains "to kill off the cattle" (Rafael Hidalgo, Interview, February 11, 1993); that CODECE was "myopic" in that while it was against bird hunting, it did nothing against the use of pesticides that were the "prime cause of the extinction of birds" (Guido Madrigal, Interview, October 29, 1992); that CODECE was out to "expropriate homes and farms" of those people who lived within the Protection Zone (Manuel Corrales, Interview, June 16, 1992); and that CODECE was remiss in its work because "there was still deforestation, contamination, and hunting" in the Mountains of Escazú (Nino Fernández, Interview, May 23, 1992). Because CODECE was the only visible environmental organization in the county at the time, it was the target of all discontent, whether in favor or against matters regarding environmental protection. Some resented CODECE for what it did, while others resented it for not doing enough.
Alexis León, a 40 year old campesino and part time construction worker for the Municipality of Escazú expressed his opinion when I asked him what he thought about the work of CODECE.
"I want to be frank and speak clearly. A man like Rodolfo León, who is a good man and all, may be part of CODECE, either for political interests, or for a salary, or to occupy a position, and he may talk much about protecting the mountains, but when he gets a piece of land, he is the first to cut down all the trees and leave that land bald like a billiard ball. So what! What is a group like CODECE doing? Taking up space, that's all. They talk about protecting the mountains, but here there is a man who every year spends his time burning the land. And say, someone like me who is interested in protecting the land, what can I do? Go to him and tell him what? Stop burning? No way. And denounce him? How? Without any witnesses!" (Field notes, April 24, 1992).
CODECE as a space that brought together people, generating a collective identity, was not initially constituted as a "legal person". It was not a registered organization, and so the law suits it filed were signed by individuals. In fact, what CODECE actually did went no further than what any individual could do: file suits, call on the authorities, denounce infractions. What CODECE achieved, however, I suggest, rested in the social capital of its collective or institutional character. The weight of an organization representing a collectivity applying the law, was greater than that of an individual. Alexis León, as an individual unconnected to CODECE, found it illusory to denounce a neighbor for environmental infractions. Members of CODECE, on the other hand, were willing to exercise their legal rights. This appropriation of the application of the law was achieved by the weight of the social capital behind the organization. Despite the particular ineffectiveness of many of the law suits filed by CODECE, it was nevertheless able to instill in its members a willingness to appropriate the law as their own, infuse the law with greater democratic participation. CODECE was partially able to destabilize the previously fixed identity of the law as a force imposed by the State, and transform it into an instrument to be used by the people, as a source of local empowerment.
By bringing the law into the realm of popular practice, CODECE also made a previously unknown law visible to members of the community. By appropriating the institutionalized cultural capital of the law, CODECE reproduced the embodied cultural capital of information in the community. CODECE made the law visible, even though it may not have been clear. CODECE's actions revealed the existence of "a law" in the mountains, a law which many rural people, I found during my conversations with them, respected without actually knowing its contents.
One campesino in the county of Asserí, Gabelo Gamboa, mentioned the effectiveness of the law in the mountains.
"These lands are good for growing corn and beans. Over there, they exploited that many years ago. There's no longer any forest. Further on up, there are fields with cattle, but I find that for the question of water and all that, I don't agree at all with cutting down the trees. Because the waters are coming to an end, they are diminishing. See that little river, it's all dried up. Why? Because, in the mountains where the springs are, I can almost say there's no more forest. Just fields and stuff. During that time when the law wasn't very, well, people didn't worry much about it, those people extracted all the wood. Things happened when there wasn't a law. Or rather, there was a law, but they didn't worry about it. But not now. With the law there is in the forestry zone, it's very difficult to cut down a tree for wood." (Gabelo Gamboa, Interview, April 7, 1992).
CODECE's collective nature provided a space of densely packed social and cultural capital which to some extent empowered its members to appropriate and democratize the application of the law. But this transformation of the lived context still remained limited by such external factors as individuals with greater economic capital and social connections within the legal system. Despite the democratization of the application of the law, CODECE found the actual laws to be ineffective against powerful private interests. No matter how successful CODECE's radical practice of redrawing the boundary between the legal institution and the people's appropriation of it might be, the actual content of the law was something CODECE considered also needed to be transformed.
CODECE Attempts to Change the Law
Soon after this initial enthusiasm and quick disillusion, CODECE began to work on writing up a Bill of Law that would replace what the Protection Zone Decree had established. With the help of their lawyer friend Patricia Madrigal and geographer William Zúñiga, Romano and Paulina wrote up in 1987 a Bill of Law for the Communal Administration of the Protection Zone of the Mountains of Escazú. This Bill proposed a redrawing of the Protection Zone, based on natural geographic lines, and a policy of communal stewardship and administration of the area. The document stated that "...even though most of the land within the Protection Zone is private property, the common good must prevail over private interests," and proposed that a "representative community organization [should have] the authority to protect and administer the appropriate use of the land" (CODECE 1987:2). For CODECE, the Bill they proposed "represented a radical transformation of national law where community property was recognized and social welfare prevailed over private gain" (Romano Sancho, Field notes on Environmental Law Workshop, June 1990).
The common practice to get a new law passed in Costa Rica was to have a Deputy of the Legislative Assembly endorse and promote the Bill of Law before the Assembly. CODECE presented their Bill to Deputy Mireya Guevara, resident of Escazú, who offered to promote the Bill before the Legislative Assembly. However, the Bill Mireya presented to the Legislative Assembly for preliminary discussion was one of her own making, and in fact a complete disregard for CODECE's central arguments. The Bill Deputy Guevara authored sought to convert the Protection Zone of the Mountains of Escazú into a National Park, which required land expropriations and severe restrictions on land use (Guevara 1987).
"One day I was still working at the farmers' cooperative," Romano recalled, "when a group of four men came in looking for me. I vaguely recognized a couple of them as large landowners of Escazú. They told me they wanted to have a meeting with me, that they were interested in talking about what CODECE was doing to protect the Mountains of Escazú. I agreed, but sensed something strange, and the following evening I took Pito with me to meet with them at a lounge in Santa Ana. There were about 15 men when we arrived. They were all large landowners in the Mountains of Escazú. When they began to question us about our intentions to make the Mountains of Escazú a National Park, we realized that there was a grave misunderstanding. They were aware of Mireya's Bill of Law before we were and had the idea that we were behind it. Pito and I had to work hard to convince them otherwise, but that is how we found out about Mireya." (Field notes, July 4, 1998).
CODECE asked Deputy Mireya Guevara for a meeting and called her to task, but she defended her conservationist re-write of the Bill. Although CODECE explained that the Mountains of Escazú did not meet the conditions to be declared a National Park, Mireya continued to promote her Bill in the Legislative Assembly, where it was eventually rejected. On the other hand, at the suggestion of Patricia Madrigal, CODECE submitted its own Bill of Law, without the patronage of any Deputy. However, over a decade since it was submitted, the Bill never had a preliminary hearing, being subject to a constant re-shuffling at the expense of other Bills with names of Deputies behind them.
CODECE's Bill of Law for the Communal Management of the Protection Zone attempted to re-introduce the concept of communal property into national law. Instead of the strict separation between individually-owned private property and State-owned public property, CODECE sought a long-discarded legal formula that would "create community", or endow the local community with "collective responsibilities" (CODECE 1987:2). Presenting this Bill without the patronage of a Legislative Deputy was also a break from established practice, an effort of self-empowerment to redraw the fixed boundaries that separated the people from the legal institutions. CODECE not only sought to democratize the content of the law, but the practice of creating laws, as well. But CODECE's attempt to create a new legal formula for "communal management", met with profoundly fixed lines delimiting public from private property, and accepting nothing in between. Deputy Guevara's Bill could only envision the alternative of State property, while the oblivion which CODECE's bill encountered revealed an incapacity or unwillingness of the legal establishment to even consider the option of communal property. On the second score, CODECE met with a legal institution superficially permeable to democratic participation, typical of State practice as revealed in Costa Rican history, but at a deeper level, the legal system was effectively impervious to popular appropriation of law-making mechanisms.
While the hegemonic interests that maintained the status quo appropriated CODECE's efforts as a way of dissipating them, CODECE began to address some of its own inconsistencies. Although CODECE's Bill of Law for the Communal Management of the Protection Zone declared the "local community" as the principal actor in the administration of the area, as well as the "primary direct beneficiary" of the region's environmental protection (CODECE 1987:3), the Bill was thought of and written up by the reduced circle of people who made up the organization at the time, and not by the "local community" it pretended to benefit. This inconsistency, Romano speculated, was the result of his political past.
"I was still under the influence of the centralized directive style of the Leftist parties," Romano explained, "in spite of the fact that I was expelled from the Socialist Party for my democratic tendencies." (Field notes, July 4, 1998).
In a self evaluation session in February 1988, the members of CODECE pointed out two major weaknesses of the committee: first, a lack of legal training for the members of CODECE, and second, a lack of community participation in CODECE (CODECE Monthly Report, February 1988). In other words, CODECE still lacked the necessary cultural and social capital for empowerment to transform the lived context.
CODECE Becomes an NGO
Two months later, in April of 1988, the Committee for the Defense of the Mountains of Escazú became an officially recognized association, opening its doors to any new membership that accepted to abide by its statutes. While keeping its original acronym, CODECE became the Association for the Defense of Natural Resources. By becoming a "legal person" as an association, CODECE was also able to opt for international funds. To this end, Paulina wrote up a project proposal to create an environmental legal office for CODECE. The proposal had two major objectives: "to contribute to the national legal framework in environmental matters" and "to train the local community in environmental law as a means of protecting the local environment". To do this the proposal called for a full time executive secretary and a part time lawyer during a period of two years (CODECE 1988). The proposal was accepted the following year by the Inter-American Foundation, whereby Paulina became CODECE's executive secretary and Patricia Madrigal its part-time lawyer. CODECE became a funded organization, entering the lines of NGOs supported by external funds.
It is important to note that the distinction between a community organization and an NGO is not always clear-cut. CODECE itself grappled with these denominations, tending to prefer the denomination of, or at least strive to remain, a community organization. Nevertheless, with the acquisition of external funding, the hiring of paid staff, and the eventual concentration of labor and information in the office personnel, CODECE tended to become more identified with an NGO. The organization bought a pick-up truck and a computer, and rented an office. They no longer held their meetings in donated space at the school of San Antonio, no longer depended on borrowed typewriters to write memos, or rely completely on voluntary unpaid work to carry out the Association's mission. With external funds CODECE became more professional. But along with this, CODECE was also affected by a process of "verticalization", or loss of "horizontal ties" (Putnam 1995:77) important in strengthening the social capital of a community organization.
Nevertheless, accessing economic capital was one way CODECE sought to improve and expand its work. Economic capital allowed for the presence of Patricia Madrigal in CODECE. An ex-schoolmate of Paulina's, Patricia was one of a few law students in the country at the time working toward a specialization in environmental law. When I began my extended fieldwork in 1992, Patricia was no longer employed by CODECE, but figured on numerous graduate committees of law students seeking degrees in the newly established field of environmental law. While with CODECE, Patricia researched diverse bodies of law corresponding to environmental matters, and shared her findings with CODECE. Together with Paulina, they wrote these up in pamphlet form to be discussed by all of CODECE in the monthly meetings organized by Paulina.