This book offers the first comprehensive introduction in either English or Spanish to private law in Spanish Latin America from the colonial period to the present.
Private law touches every aspect of people's daily lives—landholding, inheritance, private property, marriage and family relations, contracts, employment, and business dealings—and the court records and legal documents produced under private law are a rich source of information for anyone researching social, political, economic, or environmental history. But to utilize these records fully, researchers need a fundamental understanding of how private law and legal institutions functioned in the place and time period under study.
This book offers the first comprehensive introduction in either English or Spanish to private law in Spanish Latin America from the colonial period to the present. M. C. Mirow organizes the book into three substantial sections that describe private law and legal institutions in the colonial period, the independence era and nineteenth century, and the twentieth century. Each section begins with an introduction to the nature and function of private law during the period and discusses such topics as legal education and lawyers, legal sources, courts, land, inheritance, commercial law, family law, and personal status. Each section also presents themes of special interest during its respective time period, including slavery, Indian status, codification, land reform, and development and globalization.
- List of Illustrations
- Prologue: Indigenous Law
- Part I: Colonial Period
- 1. Conquest and Colonization
- 2. Structures and Courts
- 3. Legal Education and Lawyers
- 4. Sources
- 5. Personal Status
- 6. Land and Inheritance
- 7. Commercial Law
- 8. Slavery
- 9. Indian Status and Indian Land
- Part II: Independence and the Nineteenth Century
- 10. Constitutions, Codes, Caudillos, and Commerce
- 11. Private Law and Independence
- 12. Structures and Courts
- 13. Legal Education and Lawyers
- 14. Sources
- 15. Codification
- 16. Personal Status
- 17. Land and Inheritance
- 18. Commercial Law
- Part III: The Twentieth Century
- 19. From Europe to America
- 20. Structures and Courts
- 21. Legal Education and Lawyers
- 22. Sources
- 23. Personal Status
- 24. Land and Inheritance
- 25. Commercial Law
- 26. Land Reform
- 27. Development, Investment, Globalization, and an Exception
- 28. The Gap
- Conclusion: The Unfinished Business of Latin American Private Law
This book aims to provide a brief introduction to the history of private law and legal institutions in Spanish-speaking Latin America from the colonial period to the twenty-first century. The need for this work can be seen in the scant attention law is given in standard treatments of Latin American history. Latin Americanists, however, are increasingly turning to court records and legal documents as sources, and it is hoped that this work will provide needed legal background as social, political, economic, and environmental historians explore these vastly underused and extremely important sources. Lawyers, law students, and law professors will also find this survey useful for understanding the place of law in contemporary Latin American society. The historical foundations of legal practices, viewpoints, and attitudes will become increasingly important as the United States develops ever-growing economic, educational, social, and cultural ties to Latin America. This book is also written for legal historians. The time has not yet come to write a synthetic social history of Latin American law, but this work provides an essential platform of institutional and mostly autonomous legal history on which more critical histories may be constructed. The wide gap between law as written and law as practiced in Latin America dates back at least to the early colonial period, and perhaps this work's greatest weakness is that it necessarily relies on and depicts so much of the former. Some would even question the usefulness of such a one-sided legal history. But it is from the springboard of law-as-written, the "bookish law," presented here that others will be able to dive more gracefully and more effectively into the parchments, papers, archives, and records of lawyers, judges, courts, families, businesses, and governmental entities.
As a general and first exploration of relatively uncharted waters, this work sets out a framework for further investigation and criticism; it seeks to be a first step rather than the last word. On many topics this work raises more questions than it solves, but this reflects the general state of scholarship in the area. By revealing areas in the history of Latin American private law that have not been addressed by scholars, this work seeks to lead others to answer even the most basic questions concerning legal change and development in Latin America. Thus portions of this work simply show how little is known about certain topics and areas of Latin American law, such as the system of civil liability and tort law or the development of legal structure of business organizations.
In this light, I recognize that problems abound. Cross-country generalizations and regional studies are problematic, as is the exclusion of non-Spanish-speaking countries and the uneven present literature on which this study draws. For example, the legal history of the Spanish colonial period, derecho indiano, is reasonably well documented, and generalizations are more readily made when one central authority governed the entire region. The historiography of law in Latin America is itself a fascinating and wide-open field that is not addressed here, and yet I have tried to be aware of the political environment in which my secondary sources were produced. Painting with a broad brush is dangerous, and in this work I have felt the painful uneasiness that accompanies simplification and compression. Where possible I have translated words and terms into English where there seems to be no loss of meaning or legal significance. For some terms I have retained the Spanish, and definitions may be found in the glossary.
This book uses a classical chronological method of presenting the materials. After a brief prologue describing indigenous law, the work breaks into a tripartite structure based on the following periods: colonial, independence and early republic, and the twentieth century. Within each part, several similar topics are addressed, including courts, legal profession, sources of law, personal status, land and inheritance, and commercial law. Each part also contains chapters that do not carry forward these general topics but instead select a few important developments or institutions from each period. For example, the colonial part contains a chapter on slavery, the independence part contains a chapter on codification, and the twentieth century part contains a chapter on land reform.
In attempting to set out more than five hundred years of legal development, the work does not adopt one thesis or theory about legal change. If it were to do so, much of the introductory and general nature of the work would be lost in favor of rallying support for a particular viewpoint that could be consistently argued for such a large period. Surely, this is the type of work this book hopes to inspire, perhaps through the exasperation of those who want a unified theory of legal development and change. The work, however, has been guided by several themes within each part and also some overarching themes, and these may be helpful to readers approaching the text. One theme is the way private law expresses political and social power; rules of private law and their supporting institutions respond to changing social needs, external influences, and internal pressures. Thus, throughout this work, we see that foreign influences, inequality, institutions such as the church, and the demands of economic power shape private law. These themes all come into play in the course of the development of private law in Latin America.
The brief prologue is here to remind us that law was present before European contact, and that such systems of law both informed and affected colonial and even present-day law. For the colonial period, private law facilitated economic extraction from the colonies and sought to replicate Spanish society in a new setting while accommodating new legal objects. In the independence period, private law responded to new republican values and nationalism through substantive changes in rules and through codification based on European models. For the twentieth century, private law responded to the increasing demands of national commerce and social advances. An important shift noted during this work is a decrease in the importance of imported private law from Europe as a source and an increase in domestic developments, although still often informed by North American and international private law.
Some themes reach across all parts of this work. First, written law matters. Even in countries where there is a wide gap between written law and practiced law, written law is a starting place, a mark of aspirations, and an organizing structure. To note shifts, influences, and transplants in law and its sources is not the final aim of legal history; it is but a necessary step toward more exacting studies.
Second, private law matters. Even the very term private law may be problematic for some readers. In this work, I use the term to group those areas of the law that concern relationships among individuals and legal entities and to exclude the relationship of individuals to the state or the structure of the state. Although the term lacks precision and may be inaccurate and at times almost anachronistic as applied to precolonial and colonial law, it remains, at its core, a useful term and distinction. Even in the colonial period, the law governing disputes between individuals and structuring private property and business was a defined body of law. Certainly, aspects of the state and "public law" impacted these activities, but that does not mean that the distinction crumbles.
Private law and the mechanisms for enforcing it touch the daily lives of people. Private law constructs and reflects political power, economic power, and social structures. With proper enthusiasm, lawyers and scholars have recently been exploring other important aspects of Latin American law, especially constitutional law, criminal tribunals, and international human rights and humanitarian law. Nonetheless, private law has been a somewhat neglected subject. Land, inheritance, ownership, contracts, and business dealings are important facets as well. This study should contribute some ideas about these topics to the larger discussion.
Law, in one form or another, preceded the landing of the Spanish. These indigenous legal systems present a vast and relatively unexplored topic. Rather than attempt to synthesize a description of these systems, in this Prologue I want to remind the reader that the Spanish colonial system was both erected alongside and often constructed over existing indigenous legal structures of varying sophistication and abilities. Although usually obscuring indigenous law completely, some colonial Spanish institutions adopted or coexisted with indigenous legal developments.
Serving only as an example of the possible complexity of indigenous law at the time of Spanish contact, Aztec law has been sufficiently studied to provide at least a general sketch of its principal contours. The legal system of the Aztec state of Texcoco in the fifty years before the Spanish arrival provides a good example because this was an area of early Spanish contact and conquest. It is, however, atypical in its complexity and level of development.
In the fifteenth and early sixteenth centuries, the Triple Alliance of Texcoco, Tenochtitlán, and Tlacopan formed an Aztec Empire that shared and combined the governmental functions we think of today as political, administrative, and judicial. These functions were carried out through a hierarchical monarchy, supported by the pillars of tribute, war, and land. The alliance covered areas in the modern Mexican states of Hidalgo, Puebla, Veracruz, Guerrero, and Oaxaca and used various military, social, and familial methods to maintain and to expand its power and influence. The area under Texcocan control had about half a million inhabitants of several ethnic groups at the time of Spanish contact.
At the highest level of Texcocan legal authority was the ruler and his council of fourteen advisers. Below this, four councils dealt with important aspects of government organized by subject; they were the Council of Music, Arts, and Sciences (associated with the priesthood); the War Council; the Treasury Council; and the Supreme Legal Council. The existence of this separate supreme legal tribunal, along with an appellate court structure and a trained judiciary, indicates the prominence of law in Aztec society. Indeed, the Aztecs had appellate tribunals with judges, litigants, and courtrooms, and even a calendar requiring the speedy resolution of cases. Jerome Offner summarized these aspects from several early and conflicting sources and has found the following elements of the Texcocan legal system in place during the last decades of Aztec independence:
- A Supreme Legal Council existed in Texcoco, made up of at least twelve judges with territorial jurisdiction whose decisions could be appealed to at least two higher judges, who sentenced only with the approval of the ruler.
- A close kinsman of the Texcocan ruler was president of the legal council.
- At least half of the judges were drawn from the nobility.
- The jurisdictional units of the judges were six and/or fifteen in number.
- The legal council occupied two large rooms or one large room divided into two parts.
- General councils were held every ten to twelve days, and every eighty days; all cases pending were settled at these latter councils.
The Supreme Judicial Council had a comprehensive civil and criminal jurisdiction. "Crimes and disputes involving homosexuality, treason, sumptuary regulations, adultery, theft, drunkenness, slaves, property, lands, and the statuses of and differences between offices all came under the jurisdiction of this council." Although the Council on Music, Art, and Sciences had some jurisdiction over crafts and thus over defective products, and although merchants exercised some limited jurisdiction over trade, the Supreme Judicial Council was the central tribunal with jurisdiction not only over commoners and nobles, but also over merchants, craftsmen, soldiers, and priests.
There were other legal forums below the Supreme Judicial Council. For example, local lords of the empire exercised a jurisdiction over their nonnoble subjects, and separate legal institutions existed for nobles and commoners, even to the extent that certain lower courts for the two classes were located in different cities, whose decisions were then reviewable in the legal center Texcoco. Individual towns also had courts, which were subordinate to regional judicial districts. Below the town level each ward, calpulli, had a level on which legal matters were addressed. Although evidence is lacking for Texcoco, at least in neighboring Tenochtitlán the head of the ward had a jurisdiction over "marital disputes and could even order a divorce and divisions of property," but the overall nature of the legal institutions of the calpullis are unknown.
The procedure of Aztec law was solemn and oral with witnesses swearing to tell the truth "upon the earth goddess by placing a finger in the earth and then putting it to their tongue. The verb 'to swear' in Nahuatl, accordingly, is tla-qua (to eat earth)." Accused persons were not permitted to defend themselves, but generally "judges used confrontation between litigants to learn more about the case." Decisions were reached speedily, and an eighty-day limit was the maximum allotted time for any case. Scientific or at least empirical fact-finding seems to have been a part of legal procedure. "Indeed, religious beliefs entered into court procedure only to help ensure that witnesses told the truth and to provide ex post facto divine approval for the passing of sentences in serious cases."
There is little evidence to establish the existence of a group of individuals trained to serve exclusively as advocates in the courts. But considering the complexity of the legal rules, institutions, and a trained judiciary, "advocates of some kind might well have existed in the pre-Conquest Texcocan legal system." There was, however, clearly a special place in society for the judiciary. A separate school was dedicated to the training of judges. Thus, the judicial office, in society and government, was well defined and subject to rules ensuring its impartiality, honesty, and public performance. Judges were punished for hearing cases privately or for accepting gifts or bribes. Special lands were set aside to ensure judicial compensation by the state. Judges were assisted in their duties by bailiffs and scribes or painters.
Grounded in assertions of its antiquity, Texcocan law was rigidly applied in a legalistic manner. Indeed, the earliest recorded Aztec legal code addressed the concerns of a hunter and gatherer society, and by the time of first Spanish contact, substantial rules were provided by a code of eighty laws divided into four parts, one for each council. These were recorded in pictorial glyphs.
This system of courts and laws served a hierarchy of Aztec society that included an hereditary nobility, priests, merchants, and artisans. The divide between nobles and commoners was of great legal importance because one's status would determine not only what tribunal had jurisdiction but also, in certain areas of law, the applicable substantive rule of law. Below wealthier commoners in society, the ordinary agricultural workers lived as members of communal landholding groups or wards, capullis. These workers also paid tribute and provided military service.
Women in Aztec society owned property, and some women merchants were reportedly quite wealthy. An accounting of property each spouse brought to a marriage for division on divorce also indicates that women were viewed as property owners. Daughters of nobility were given lands for their support, and despite a lack of direct evidence, it appears that women also inherited property and made effective transfers of property on death. Thus, women possessed certain rights over property, but these rights might have been mediated through the oldest male among siblings acting as a guardian.
Below nobles and commoners were serflike agricultural workers tied to the land, and slaves. In comparison to its European counterpart, Aztec slavery appears to have been more fluid. Slavery might result from capture in battle, being sold by one's parents, selling oneself, or as punishment for crime. A family might contract to supply a slave to a noble and fulfill the obligation through rotation. Children of slaves were free and manumission was possible through a legal act of the owner, marrying one's owner, purchasing one's freedom, escaping, or obtaining royal asylum. Owners had to treat slaves well, but after a number of warnings, an owner could punish a slave by putting a wooden collar around his neck, selling him to another, and even selling him for eventual human sacrifice. Slavery encompassed a wide range of social and property relationships under Aztec law; the status of some slaves was based on contractual agreement, but other slaves were considered property. Some slaves "could also have families, property, and even other slaves. . . . Slaves who had been enslaved as a legal punishment and who thus had no contractual relationship with their owners, and collared slaves, who had violated the terms of their contract, were undoubtedly the personal private property of their owners, and so certainly suffered under the most severe and restrictive forms of slavery."
Aztec law regulated marriage. Attempted marriages with close relatives were prohibited and punished as offenses, although in some areas it was a permitted practice to take the wife of a deceased father, excepting one's mother, or of a deceased brother. Adultery was highly regulated, with numerous levels of offence depending on such factors as the class and sex of the offender. Polygamous marriages were possible, especially among nobles, and one of the wives was identified as legitimate for the purposes of inheritance so that the son of this wife would inherit the father's property. A brother customarily married his sibling's widow. Divorce for cause existed, and the one found to have blame lost half his or her goods. On divorce, sons remained with the father and daughters with the mother. Widows and divorced wives were required to wait before remarriage.
The ruler of Texcoco distributed land claimed through an established ritual of possession as conquest bounty. The law regarding land tenure was complex and included elements of both communal and private ownership. The type of holding available to an individual depended on the status of the owner. For commoners, "on the lower legal levels of the empire, land might have been bought, sold, rented, and passed on to heirs within and between wards with little more than perfunctory review--#151;or with no review at all--#151;by political officials." Even though these lands were treated as private property, the ward theoretically also owned them communally. Lands held by nobles could be either held individually and freely alienable or only for their benefit and inalienable. Certain lands were attached to particular political offices, such as lands used to support a lesser ruler, or institution, such as palace lands, or held for a particular purpose, such as war lands. A system of allocating both tribute and serf or commoner labor on lands made some property more profitable than other. Offner's work on land tenure destroys a common misperception of preconquest universal communal ownership; "Monolithic views of a simplistic individual usufruct, communal tenure of land by all commoners in Central Mexico, need no longer be taken seriously."
Even landholding by commoners was not uniform or simple. "The landholding patterns indicate individual tenancy of land, land inheritance and concomitant fractionation, along with the acquisition of extra land, perhaps via rental or purchase agreements, by individuals and households." Scattered and fractionated landholding was not unique to commoners. Dispersed landholding by rulers on an individual basis increased political stability by tying their wealth to the interests and stability of regions other than their own.
In addition to land, houses and personalty were recognized as property. In some areas of the empire, groups of related individuals, rather than nuclear families, had various interests in houses. In other areas, however, nuclear families predominated. Both men and women owned personal property and often passed the property on according to gendered activities associated with particular types of property. For commoners, who often lived communally in residential structures, inheritance patterns were relatively simple: "The common people divided their property equally (in principle) among the offspring of the deceased." It is unclear, but likely, that "offspring" included daughters. For nobles, the nature of inheritance was more complex and apparently followed political succession patterns favoring passage of property from father to son. Other sources indicate that brothers each took their father's property in succession in order of birth. If there were no person to take the property, it escheated to the local ruler or town who then distributed the property to others.
Although Aztec society did not have money, a complex system of barter was in place, and commercial disputes were sometimes subject to specialized tribunals. Trade covered substantial distances and the need for specialized tribunals reflects both the complexity of issues that could arise as well as the frequency of disputes. Aztec women played an active part in sedentary trade, such as the production and trade of cloth. Numerous methods led to effective debt collection, with imprisonment and slavery as possible punishments, the latter being used to offset the debt due. Debts were inherited, but never to the extent that the surviving spouse and children faced slavery. The existence of laws regarding interest is uncertain.
The Aztec Empire was not the only pre-Columbian civilization to have a legal system with significant attributes; the Incas of Peru also had a complex legal system. At the time of Spanish contact, the Inca Empire governed from 4 to 8 million inhabitants from its imperial center Cuzco. Although a hierarchical structure of government existed, there is little to indicate that separate courts, judges, or legally trained representatives existed apart from the regular combined governmental duties of Inca officials. The application of substantive rules of law varied according to the social position of those involved in the crime or dispute. Agricultural workers were required to supply services to the Inca in a system of rotational work called the mita, and some workers, yanacona, were tied to the Inca or the nobility and lacked freedom. Women had a much lower status than men in Inca society, and in some circumstances were treated as inheritable property. Indeed, the Inca owned some women and distributed them for religious purposes or as personal rewards. Others remained the property of the Inca. Marriage and upper class polygamy were regulated and adultery punished by law.
Landholding and inheritance were important aspects of the Inca legal system. Land was held for the Inca (government), the Sun (religion), and the people to be worked by collective units, called ayllus. Land was also held by individual grantees who received the land as favor from the Inca. Furthermore, land might be attached to particular government offices, which because of the hereditary nature of the office, kept these lands in a particular family. Personal property was inheritable, and land was inherited depending on the type of land, the status of the owner, and local variation. Male heirs such as sons, brothers, and nephews were favored.
Immediately after the conquest, law had an important function in mediating between Indian and Spanish culture and cultural differences were expressed through disputes concerning property or family structure. Certain aspects of Spanish legal culture matched closely with preconquest customary law, including tribute payments, jointly held lands, slavery and other forms of forced labor, and special courts for particular classes of litigants. For example, the Spanish colonial ejido, in which lands were used in common, would have been similar to the preconquest forms of communal ownership. Spanish tribute and forced labor systems had preconquest elements or parallels, such as the Incan mita. Nonetheless, causation is difficult to determine. Furthermore, Spanish legislation did not set out to destroy all indigenous legal customs, but specifically stated that such customs would govern to the extent they were compatible with the crown and the church.
Thus, some Latin American societies had substantial legal structures in place at the time of Spanish conquest. There may be questions about whether the Aztec system was an exception among the cultures and civilizations present before the arrival of the Spanish, but recent anthropological scholarship has done much to expand our appreciation of the subtleties and complexities of legal systems based on oral, customary traditions, let alone those incorporating established legal institutions, personnel, courtrooms, and documentary evidence. Spaniards landed on a continent with significant indigenous legal traditions.
“M.C. Mirow has set himself a difficult task, to contribute a one-volume introduction to Latin American law in English, and he has succeeded admirably.”
Law and History Review
“The impressive scope of this book makes it a major contribution to Latin American legal history. . . . This is an excellent starting place for anyone interested in the legal history of the region, and it is essential reading for those seeking to understand the roots of contemporary Latin American politics and society.”
Lauren Benton, New York University, author of Law and Colonial Cultures: Legal Regimes in World History, 1400–1900