The Coloniality of Law in Peru:Legal Positivism, Rape & Racialized Morality in Early Twentieth-Century Courts

Abstract

Objective/context: In the early twentieth century, Peru rejected legal pluralism and, once again, selected a highly European-inflected penal code, undergirded by the prevailing tenets of legal positivism. In doing so, criminal courts became a particularly contested site, where indigenous and mestizas (mixed-race) women shaped and negotiated racial sentiments constructed around their sexuality. In also shaping the meaning of the law itself, I contend that virginity—or lack thereof—patterned legal positivism in Peru. I first detail the historical impact of legal positivism on Peru’s judiciary. I then showcase women’s courtroom narratives (alongside other juridical testimonies) that reveal their struggle for political inclusion. Methodology: This article is built from an analysis of primary and original archival data and is the synthesis of 55 cases of alleged sexual transgressions occurring in the region of Cuzco from 1924 to 1949. Originality: This paper is significant because it is one of only a few that examine the history of legal positivism and rape prosecution in the early twentieth century by incorporating primary archival data to show how women were protagonists in shaping Peru’s unique legal, political and cultural history. Conclusions: Expanding the arguments of imminent Andean scholars of postcolonialism, I argue that the ‘coloniality of law’ in Peru is illuminated by the collusion of legal positivism and fin de siècle racial ideologies that created a new subjectivity for women. In addition to refashioning repressive honor codes (literally embodied in ideas about morality and chastity), the new penal code also broadened a gap where indigenous and mestizo women argued their juridical humanity in criminal courts.