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Mapping Marriage Law in
Spanish Gitano Communities
Law and Society Series
W. Wesley Pue, General Editor

The Law and Society Series explores law as a socially embedded phenome-
non. It is premised on the understanding that the conventional division of
law from society creates false dichotomies in thinking, scholarship, educa-
tional practice, and social life. Books in the series treat law and society as
mutually constitutive and seek to bridge scholarship emerging from inter-
disciplinary engagement of law with disciplines such as politics, social the-
ory, history, political economy, and gender studies.

A list of the books in this series appears at the end of this book.
Susan G. Drummond

Mapping Marriage Law in

Spanish Gitano Communities

UBCPress • Vancouver • Toronto

© UBC Press 2006

All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, without prior
written permission of the publisher, or, in Canada, in the case of photocopying
or other reprographic copying, a licence from Access Copyright (Canadian
Copyright Licensing Agency), www.accesscopyright.ca.

15 14 13 12 11 10 09 08 07 06 5 4 3 2 1

Printed in Canada on acid-free paper that is 100% post-consumer recycled,

processed chlorine-free, and printed with vegetable-based, low-VOC inks.

Library and Archives Canada Cataloguing in Publication

Drummond, Susan G. (Susan Gay), 1959-

Mapping marriage law in Spanish Gitano communities / Susan G. Drummond.

(Law and society, ISSN 1496-4953)

Includes bibliographical references and index.
ISBN-13: 978-0-7748-0925-2 (bound); 978-0-7748-0926-9 (pbk.)
ISBN-10: 0-7748-0925-6 (bound); 0-7748-0926-4 (pbk.)

1. Marriage law - Spain. 2. Law, Romani. 3. Romanies-Legal status, laws, etc. -

Spain. 4. Domestic relations - Spain. 5. Andalusia (Spain) - Social life and customs.
6. Law and anthropology. I. Title. II. Series: Law and society series (Vancouver, B.C.)

KKT1805.D78 2005 346.4601'6'08991497 C2005-905133-7

Canada

UBC Press gratefully acknowledges the financial support for our publishing
program of the Government of Canada through the Book Publishing Industry
Development Program (BPIDP), and of the Canada Council for the Arts, and
the British Columbia Arts Council.

This book has been published with the help of a grant from the Canadian
Federation for the Humanities and Social Sciences, through the Aid to Scholarly
Publications Programme, using funds provided by the Social Sciences and
Humanities Research Council of Canada.

UBC Press
The University of British Columbia
2029 West Mall
Vancouver, BC V6T 1Z2
604-822-5959 / Fax: 604-822-6083
www.ubcpress.ca
For Noah Newton
This page intentionally left blank
 Contents

Preface / ix

Introduction: Le Guide du Routard / 3

Synoptic Overview / 3
Itinerary / 4
Approach / 8
Preparations / 10
Souvenir / 25

Chapter 1 State: Intersections in Spanish Family Law / 27

The Persistence of "Otherness" / 30
Religion's Domain / 34
Shifting Contexts for Legal Reform / 40
Shifting Esprit des lois I 47
Women and the Spirit of Family Law / 54
Weak and Deep Pluralism of the Official Family / 60
New Forms of Spanish Pluralism / 69
The Contemporary Jurisdiction of Religion in the Official Family / 72
Conflicting Dominions in Family Law / 75
The Mystification of Reform through Law / 79
Liminal Tones, Characters, and Moods / 85

Chapter 2 Culture: Wanderings and Dwellings / 93

Deep Pluralism and the Gypsies / 97
A Jurisdictional Model of the Gypsies for a Jurisdictional Model of
Gypsy Law / 103
Matter Out of Place / 110
Reconceptualizing Gypsy hood / 121
The Great Gitano Roundup: Rounding Off the State through Law / 130
 The Production of Gitanitude / 146
Flamenco Puro and Pure Gitanitude / 162

Chapter 3 Marriage: Hidden and Enacted lus Commune /173

Hidden Constitutions / 176
Multi-Sited Comparative Law / 186
The Plurality of lus Commune I 191
Hidden Marriages / 200
Hidden Marriages within Hidden Marriages / 212
The Place of Gitano Family Law in Andalucia, Spain, and Europe / 220

Conclusion Voyage through a Strange City / 237

The Place of Jerez de la Frontera / 242
A Wandering and a Dwelling Law / 244

Notes / 247

Index / 263
Preface

In 1995 I went to Jerez de la Frontera, in southern Spain, with Jean-Marc,

my husband (at the time), who was doing ethnomusicological research,
and our then two-year-old son, Noah, to carry out six months of fieldwork.
The selection of Jerez as a "site" and Gitanos as a "culture" was, for me,
a more or less arbitrary choice. The decision to move my research focus
from northern Quebec to southern Spain was not principally dictated by a
desire to move the ethnographic inquiry from a periphery closer to a cen-
tre - a polarity that anyhow quickly fell apart in my original foray into
the domain of fieldwork. In the past I had carried out legal ethnographic
research in Inuit communities in northern Quebec and had found that this
context, though superficially remote and isomorphic, was, upon deeper
investigation, linked to, and intersected by, translocal forces impinging
on and forging local legal sensibilities. Although Inuit communities had
highly distinctive ways of producing locality and indigenizing modernity,
they were no more peripheral and locally contained than the island
metropolis of Montreal, from where my voyage began. The internal ethno-
graphic logic of a shift in research from northern Quebec to southern
Europe was, therefore, not immediately jarring.
The decision to shift from northern Quebec to southern Spain was also
not dictated by a desire to unearth legal continuities between nomadic or
diasporic peoples - the Inuit and the Roma being paradigmatic cases in
each point. These categories have lost their conceptual clarity in the face of
(to give two small examples) mass migrations of supposedly long-settled
Andalusian Gitanos to northern Europe for work in the 1950s and the
ongoing travels of supposedly now-settled Inuit south and abroad for edu-
cation, work, and leisure. Nor was it driven by a desire to shift from public
law (criminal law sensibilities) to private law (family law sensibilities). The
move was dictated, in fact, by the far more prosaic and pragmatic concerns
involved in coordinating research agendas between two ethnographers
with divergent research intrigues. I was not adverse to a change of locale. It
was hence decided that I would study Gitano family law.
x Preface

The pragmatic rather than logical motivations for the change of field
forced upon me a more direct reckoning with what many ethnographers
find themselves running up against in whatever field they enter and wher-
ever they roll out their writing implements - the undeniable presence and
localization of the extra-local. What emerged for me most clearly out of the
experience of the geospatial shift between fieldwork venues - out of,
indeed, the very arbitrariness that motivated it and the connections that
emerged nevertheless - was the deepened sense that periphery and centre
do not hold together anymore as conceptual divides. Nor do settled and
dispersed hold together. Jerez, in a sense, could be anywhere. I was circum-
stantially obliged to abandon the aspiration of deepening my understand-
ing of a single locale for a different aspiration: a deepened understanding
of the problematic of locale.
Although I went to southern Spain to conduct a close-up examination of
law on the ground within that space, the space to which I had constricted
myself quickly lost its manageable contours and became a shapeless object
made up of shifting, overlapping, and sometimes congruent terrains. My
itinerary through the fluctuating conceptual space of Andalusian Gitano
family law took me on itineraries through Paris, Madrid, and the Vatican
City; through Indian dialects, English roadsides, and Californian court-
houses; through the Roman empire, medieval legal history, and European
unification; through the intrigues of royal courts, heroin addiction, and
unemployed priests; and through northern European agricultural fields
and Spanish car factories. Just like the Gitanos, who are a paradoxical
incarnation of a settled diaspora still on the move within the rest of the
world, the itinerary of this ethnography goes far and wide while it attempts
to evoke one of the world's diverse and heterogeneous sites for the emer-
gence of locality in a place-neutralizing world.
I owe a huge debt of gratitude to the people of Jerez, Gitano, and payo,
who were unflinchingly gracious, hospitable, and generous with their lives.
One cannot really envy a people their form of life (or else one would be
better off choosing it for oneself), but Jerezanos and their city bring me
close to that place of longing. I am also hugely appreciative of the thought-
ful commentary provided by both Elaine Baker and Jeremy Webber. What
great good fortune and pleasure their fostering and oversight brought to
my life as they gave me the license and discipline to follow the trail of my
investigations!
Mapping Marriage Law in
Spanish Gitano Communities
This page intentionally left blank
Introduction:
Le Guide du Routard
J'essaie de vous faire voyager dans un pays. J'essaierai de montrer
que les difficultes philosophiques proviennent de ce que nous
nous trouvons dans une ville etrangere et que nous ne connaissons
pas le chemin. II nous faut done apprendre a connaitre le terrain,
en nous deplacant dans la ville, d'un endroit a 1'autre, puis de cet
endroit a un autre encore. C'est une pratique qu'il faudra repeter
jusqu'a reussir a se reconnaitre partout, immediatement ou apres
un bref regard, quel que soit 1'endroit ou on vous depose.
Cette image est parfaite. Pour etre un bon guide, on devrait
commencer par montrer aux gens les rues principales. Mais moi,
je suis un mauvais guide, je me laisse facilement detourner de
mon chemin par des lieux interessants, je m'engage volontiers
dans des rues secondaires avant d'avoir montre les rues
principales.

- Ludwig Wittgenstein1

Synoptic Overview
I am going to take you on a voyage to an unfamiliar land through a strange
city. It is a recapitulation of a journey that I myself took. There are normal
expectations regarding such an offer. First, when we arrive in a strange city,
we would expect not to know how to get about. Usually one would learn
how to get to know the terrain by wandering from one place to another
and then from that place to another again. We would repeat this pattern
until we knew how to recognize where we are as soon as we are placed in a
spot (or after a brief look around), no matter where we find ourselves. A
good guide starts by showing people the principal streets. Yet this tour is
not typical. Over the course of this voyage, I will open up avenues, inter-
sections, and back alleys in the text so that the reader might be easily
diverted by interesting places along the way. I will lead the reader up sec-
ondary streets before getting to the principal boulevards.
The reader has been brought to the city as a tourist, a traveller, an anthro-
pologist, and a legal comparativist. The text offers two principal tours:
comparative law and legal anthropology. The one is more focused on the
boulevards of state law, while the other examines the side streets of cultural
law. The city is an intermediary place between state and local culture - a
middle ground. It is the place where people live their practical lives and
4 Introduction

smooth over the intersections between the two. Both itineraries - compar-
ative law and legal anthropology - have diversions and detours. Both itin-
eraries, intersected as they are by such excursi, destabilize a sense of the
coherence of the law and leave in its place an unsettled ethos of the city -
a place characterized by matters that are perpetually out of place being
constantly rearranged, sometimes tidied up by and with the law. Both itin-
eraries cover the beaten track, the roads (whose imperfections prudence
could not well provide against) that have been smoothed over by custom.
Both leave the city with a sense of what seems to have developed organi-
cally - despite concerted efforts at urban planning.
In one way, then, this is a voyage through a metaphorical city - a place
where disciplines converge. Yet it also recapitulates a journey through an
actual city: Jerez de la Frontera. Jerez is a medium-sized agro-town (popu-
lation of approximately 200,000) in Andalucia in the south of Spain. It
is popularly known as the place where sherry is produced. In other circles
it is known as one of the cradles (if not the cradle) of Flamenco. A signifi-
cant portion of the research for this book is based upon a period of several
months during which I lived in this city. And an important part of the text
is written in a style and with a composition that reflects its presence in my
imagination: how it looked, how it sounded, how it moved, and how it
smelled. Each chapter is run through with a type of ethnographic writing
that is meant to evoke the singular corners and turns, doorways, and bars
of this actual place - a place that the reader could also visit in person; a
place that some readers may already know. In this way, it is a voyage
through a strange city in more than one sense: it is not only a foreign and,
most probably for the reader, an unfamiliar city but it is also one that is
strange in the odd configurations of its actual urban landscape.
Although the very concept of "place," as I will shortly reveal, is the cen-
tral analytical problematic of the book, I chose from the outset to base my
research on what is, at least in the conventional sense, undeniably a "place"
- the actual city of Jerez. As the dialogic emphasis of the book should
increasingly become familiar as it is articulated and revisited over and over
again in both its form and content, it was critical for me that all of my itin-
eraries were kept on track and kept in line with the contours of a world that
is actually out there, beyond our readings and imaginings. By bringing the
actual city into contact with the metaphorical city of the book's theoretical
musings, it is hoped that both will come more clearly into view.

Itinerary
In the following voyage through family law in the strange city of Jerez, I
have tried to set a course that will take the reader through some of its main
roads, side streets, and back alleys as well as into people's homes. The point
of entry into the city is not inevitable. I could have started at the threshold
 Le Guide du Routard 5

of people's homes or at the entrance to a main boulevard or on the tarmac

of the local airport. As it is, the first chapter starts with the state (meta-
phorically, a main street in legal studies), and it is not until the second
chapter that the Gitanos and their culture (a side street in legal studies) are
approached. The first chapter is a comparative law overview of Spanish state
family law. The second chapter is a critique of cultural accounts of the Roma
and Gitanos. The final chapter regroups around the theme of marriage, fan-
ning out over the disparate trajectories and disparate cultures and different
senses of law in the previous two chapters.
In looking at a map of a city, it is apparent that everything is connected
to everything else and that everything flows together. A visitor to a city,
however, cannot take everything in all at once. Choices need to be made
about where to go first and then next, step by step, corner by corner, even
though these choices appear arbitrary when looking down at a map of the
whole. In the same way, the division of the body of this book into three
parts, covering state, culture, and marriage, must appear arbitrary.
As the reader embarks on the first chapter of the book on state and reli-
gious law in Spain, the absence of the Gitanos in its pages must be con-
spicuous. The Gitanos have dwelt in the same principally urban landscapes
as non-Gitanos for centuries. Further, the Gitanos are, after all, the fulcrum
of this study. It is the ethnographic material on the Gitanos that is intended
to shed light on the development of national and transnational law as well
as on the complex interconnections between local law and the larger sys-
tems of law that attempt to regulate it. Yet the Gitanos are almost entirely
absent from the first chapter. In addition, as the reader leaves the compar-
ative law analysis of the first chapter and heads into the legal anthropology
of the second, he or she will surely feel that there is a further postponement
of a synthesis between the two. The reader must wait until the third and
final chapter for the synthesis that is central to the book.
This suspension of critical elements is intentional and perhaps inevi-
table, albeit artificial. As the reader will discover over the course of the book,
given the interpenetration of the Spanish state and the Gitanos of Spain, it
is difficult to understand the latter if they are conceived of as a stand-alone,
independent group. And the same can be said of the state - that it does not
take its shape independently of local and extra-territorial influences. How-
ever, I have postponed a discussion of the Gitanos for the entire first third
of the book in order that the reader might first become familiar with the
tension between the relevant state and religious law. Once the reader has
this knowledge of the background, she or he should be able to approach
the material on the Gitanos in the second chapter (and the explicit syn-
thesis between state and culture in the third) oriented to read the critique in
the shadow of its state/religion doppelganger; oriented by the end of the
second chapter to read state and culture together; better able to recognize
6 Introduction

where she is, no matter where she finds herself. While the third chapter
makes the synthesis explicit, the integration is implicitly invited over the
course of the materials by the way that the chapters walk alongside each
other. In fact, Chapter 2 and Chapter 1 (with their respective emphases on
culture or state) could have intelligibly been reversed. Such a reversal might
indeed have generated a different feel from the voyage. What writing
teacher Jack Hodgins says about stories is just as apt about legal itineraries:

Some writers have suggested that a story is like a house: it doesn't matter
which door you enter so long as you visit all the rooms before you leave.
Yet choosing this door instead of that door, visiting this room before that
room, can make a difference. By the time you step out of the house and
stand back far enough to get some perspective, your experience of the
building will have been affected by the order in which you visited the
rooms as much as by the contents of the rooms themselves. Imagine visit-
ing Manhattan immediately after spending some time in the tiny mining
village of Elsa in the Yukon Territory. Imagine visiting the same two places
in the reverse order.2

This comparative law ethnography could just as easily have started with
cultural law as with state law and have spread out to the other from there.
It is really in the conjunction of scales and itineraries that the text produces
its sensibility.
Ultimately the comparative enterprise in this book works more like a jux-
taposition of odd objects and scales (to borrow Annelise Riles's metaphor of
Wigmore's Treasure Box),3 each speaking sometimes surprisingly to each other
and suggesting the emergence of interesting new relations. What is law and
what is not law is not predetermined (or even eventually answered) in this
query. Yet by laying out several of the perspectives from which this topic
might be viewed, I hope that various projections of law might come more
clearly into view. In addition, it is hoped that some of law's itineraries (in the
sense of both agenda and trajectory) will emerge in a place-neutralizing
world. The ultimate destination of this wide-ranging itinerary will be - as
is so often the case with the comparative passion to expand one's horizons
- back home. The person who knows many traditions begins to know his
or her own - and perhaps begins to feel at home in its capaciousness and
within its limitations.
If a story might be like a house, it might also be like a city: your point of
entry does not matter as long as you visit all of the sights before you leave.
Yet choosing one point of entry over another can make a difference. Arriv-
ing by plane, with its preliminary visual embrace of the entirety, will offer
a different sensation of the city than entering the chopped-up oily harbour
by boat. And plodding into the city on foot from the dusty fields will offer
 Le Guide du Routard 7

up a different perspective than entering by car after a road trip across the
entire country. If I had available to myself in this textual documentary the
range of representational options available to visual artists, this text would
approximate a cubist representation of a city - a place that can be rotated
and absorbed and explored from several different angles simultaneously.
Given the limitations of text and the sequential demands of narrative, I
must start someplace.
This story could have begun with the Gitanos and Gitano law. Instead, it
will begin with a concentration on the official family law of Spain. It could
have started with culture, but it will start with the state. This decision was
made partially because there is no part of the world that is not allocated to
a sovereign state, and all cultures are therefore deeply and organically
imbedded within larger world systems. A group such as the Gitanos, which
has been dwelling in the Andalusian landscape for over five hundred years,
will a fortiori respond to its peculiar shape. And states have always been
filled out by diverse cultural groups and impregnated by their presence.
The story of state law is part of the story of Gitano family law and vice
versa. The story must begin somewhere. Missing out on the tale of official
family law would be like visiting a city and sticking to the side streets and
back alleys. Missing out on local law would be like keeping to the main
thoroughfares and boulevards.
I have employed one other device that mimics the city's cross-cutting
streets and roads. Each of the three chapters sets up a dialogue between
two points of reference - one that is more historical and theoretical (in a
serif font) and the other that is more ethnographic in style (in a sans serif
font, tagged with an arrow). For example, although the first chapter's point
of entry into the problematic of Spanish/Gitano family law leads to the
familiar European boulevard of state law, the text is intersected by ethno-
graphic moments that allude to another ethos of the city of Jerez - a more
intimate one where shoulders are rubbed with real human beings, not only
the mock-ups of historical narrative. The chapter, like a city, has side roads.
Just as the visitor to Jerez is implored by Le guide du routard (see herein p. 27)
to get out of the car and walk - to get a feel for how the place smells and
sounds and to begin to sense what it might be to live in it - this chapter
takes the reader on some detours. In the case of the first chapter, I will be
taking the reader quite literally through the streets of Jerez. We will follow
pasos (the large platforms upon which the statues of Christ and the Virgin
Mary are hoisted during Holy Week), enter churches and homes, and go up
alleys and down one-way streets. In a very graphic sense these intimate for-
ays (set in a different font and tagged with an arrow) intersect the more
ponderous historical narrative of the main text. These excursions draw the
reader's attention to the ways in which historical narrative is threatened at
the edges with seeping facticity.
8 Introduction

The second chapter, like the first one, is also traversed by a series of snap-
shots from the field, thematically linked this time by a query about the
nature of Gitanitude and how it is made manifest. And the third chapter is
intersected by analogous ethnographic forays - this time into weddings:
spoken about, attended, and witnessed. The sidestreets are ethnographic
material culled from several months of fieldwork in the spring of 1995. The
threads, pulled out of the crazy quilt of fieldnote entries, depict, from the
vantage of the ethnographer, the ambience of Jerez de la Frontera. They lit-
erally provide a way for the reader to wander about in the setting for fam-
ily law in Jerez, to get a feel for a time and place - an ethos loosely bound.
A tale is told, a point of entry selected. Yet, like Wittgenstein's errant guide,
the intersected texts invite the reader to wander up secondary streets on
their grand tour of the principal roads and byways of law.

Approach
Even as the two itineraries of comparative law and legal anthropology are
brought together in this book, its agenda remains essentially just one itiner-
ary. A word of caution and foreshadowing is in order so that the reader
does not feel that the regular expectations of either independent discipline
are unduly thwarted. Insofar as it is just one itinerary, some parts of the
trip - which one might normally think would be de rigueur for either disci-
pline - have had to be left behind. The text as a whole intends, through its
travels, to push the settled understandings of both disciplines. It cannot
then be an entirely predictable voyage for those who are familiar with one
discipline or the other. An anthropologist looking for standard anthropo-
logical frames and methodologies will, no doubt, be disappointed, as will a
comparativist who is most comfortable on excursions that compare national
legal systems. In a classic recapitulation of the spirit of interdisciplinary
work, Roland Barthes foreshadows the difficulties and disappointments that
a reader at ease with the routines of anthropology or comparative law
might encounter in reading the text against the grain of a constituted dis-
cipline. The point of interdisciplinary work, according to Barthes, "is not
about confronting already constituted disciplines (none of which, in fact,
is willing to let itself go). To do something interdisciplinary it's not enough
to choose a 'subject' (a theme) and gather around it two or three sciences.
Interdisciplinarity consists in creating a new object that belongs to no one."4
This particular piece of research and the theoretical paradigm upon which
it is grounded manifest a quite self-conscious move away from traditional
anthropological paradigms of culture and jurisdictional conceptions of
state in preference for a more conflicted, dynamic, and unstable model of
the interactions between the scales of the local, the national, and the global.
The overarching place of this work within interdisciplinary studies might
well lead some readers who are devoted to one of its constituent subjects to
 Le Guide du Routard 9

lament the absence of some familiar landmarks. The dissonance between

the cultivated expectations of each discipline and the new object that be-
longs to neither may be most conspicuous in the bodies of literature upon
which the overall work draws. It might be worth acknowledging before
things really begin that if this work was situated solely within the familiar
domains of either literature, it might well come up short. Yet the interdis-
ciplinary nature of this particular manuscript cannot serve the masters of
its constituent subjects without losing its more important obedience to the
disciplines of interdisciplinarity. Of necessity - and as with any journey -
the literature drawn upon will be selective rather than comprehensive. The
selection will be driven by the objective of bringing the distinctive preoc-
cupations of each field into dialogue with each other rather than going
over the familiar terrain of each in greater depth.
There are other ways in which this self-consciously new object, which
belongs to neither discipline, might lead readers afar from their expecta-
tions. So, for example, anthropologists looking for a standard ethnographic
account may well feel thwarted by conventional anthropological expecta-
tions for both cultural representations that cover "the culture" and for the
attendant methodological certainties about how to extract the data upon
which such representations rest. The research on which this book is based
not only is grounded in an actual city, it is also concentrated on a particu-
lar group that lives in this city - the Gitanos. Jerezano Gitanos are a group
of people linked most frequently in anthropological literature with the
Roma, or Gypsies. They are a group that has dwelled for over five hundred
years in Andalucia.
It would be fair to assume that some readers will come to this text with
the expectation that this account will fill in the details of how the well-
covered traits of the Gypsies or Roma (and, in particular, the details of their
distinctive legal system) play out among the Gitanos. As is argued through-
out the book, however, this type of trait ethnography should give way to a
process ethnography. There are recent discussions going on in Gypsy stud-
ies of a movement away from internally coherent views of the culture. This
trend is part of a more general movement in anthropology away from imag-
eries of coherence and totality. The "cultural" analysis of this book builds
on the recent intrigues in Gypsy studies and quite self-consciously declines
to canvass putatively stable traits - in fact, it sets out in some ways to de-
stabilize them. Given the ferment for an articulation of processes over traits
in the field of anthropology more generally, there may indeed be more at
stake in this work than just Gypsy studies, as the text unsettles an entire,
relatively stable anthropological concept of culture.
Furthermore, the "ethnographic" writing that cross-cuts the text (marked
with an arrow) may seem atypically allusive and novelistic for an ethnog-
raphy. The representations of culture in the text - that is, its style - may
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