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Latin American Law

M.C. Mirow
Copyright Date: 2004
https://www.jstor.org/stable/10.7560/702325
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  • Book Info
    Latin American Law
    Book Description:

    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.

    eISBN: 978-0-292-79844-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-v)
  2. Table of Contents
    (pp. vi-vii)
  3. LIST OF ILLUSTRATIONS
    (pp. viii-viii)
  4. ACKNOWLEDGMENTS
    (pp. ix-x)
  5. INTRODUCTION
    (pp. xi-xv)

    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...

  6. Prologue: INDIGENOUS LAW
    (pp. 1-8)

    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...

  7. Part I: Colonial Period
    • CHAPTER 1 Conquest and Colonization
      (pp. 11-18)

      LAW and legal institutions served the crown’s needs of conquest and colonization.¹ This appears self-evident to those working in Latin American colonial history, and yet few have set out to demonstrate how or why this is true. Recent scholarship, however, has begun to tackle the function of law as a mechanism of political and cultural hegemony in Latin America.² Private law served numerous purposes in colonial society, and noting several important aspects here may help to characterize the sources, rules, and institutions discussed in this work.

      First, law was an essential tool of royal economic and social control over distant...

    • CHAPTER 2 Structures and Courts
      (pp. 19-33)

      THE political and social landscape of the colonies was covered with competing interest groups and factions. In fact, there was greater complexity in the colonies than in Spain. The colonies contained European-born Spaniards, Creoles, regular clerics, secular clerics, viceroys, archbishops, local ruling landholders, colonizers, Indians, city government officials, local royal authorities, soldiers, foreigners, slaves, merchants, miners, pirates, bandits, and smugglers. Different classes and races mixed and overlapped. All these inhabitants contributed to a complex whirl of social, economic, legal, and jurisdictional interaction.¹ The legal structures available to these individuals followed the general political structure of the empire, and perhaps some...

    • CHAPTER 3 Legal Education and Lawyers
      (pp. 34-43)

      LATIN American universities were modeled on European universities, and especially the University of Salamanca.¹ Having their own governing bodies and courts, universities had a significant amount of autonomy in colonial society.² They also fit into the broader matrix of social institutions found in the cities supporting them. Universities had ties to the local religious hierarchy and were usually led by a secular authority, arector, and an ecclesiastical authority, amaestrescuela.³ These interests did not always govern universities in harmony. For example, in the early years of the University of Mexico, the royal authorities of the viceroy and theoidores...

    • CHAPTER 4 Sources
      (pp. 45-53)

      ALTHOUGH scholars may disagree about the application of terms such aspublic lawandprivate lawto the Spanish colonial legal world, the distinction is useful in setting out the most important legal sources of the period. This chapter discusses public law sources first, particularly as they relate to perhaps the most important colonial legal source, theRecopilaciónof 1680. The chapter then addresses private law, especially the importantSiete Partidas, and commentary sources. Last, the way sources were used in legal disputes in the colonial period is described.

      The Spanish colonial law, orderecho indiano, was constructed out of...

    • CHAPTER 5 Personal Status
      (pp. 54-60)

      COLONIAL Latin America was a socially stratified society. Social distinctions were made on the bases of race, sex, age, family lineage, religion, marital status, place of birth, occupation, wealth, and personal attributes.¹ The law reflected and reinforced many of these distinctions. There were consequently a multiplicity of juridical categories for individuals and entities subject to the law. Castilian, and consequently colonial, law recognized different levels of individuals based on birth. Other individuals claimed different or special treatment due to their being subject to a particularfuero, such as the ecclesiasticalfuero.² Latin America also presented a host of new categories...

    • CHAPTER 6 Land and Inheritance
      (pp. 61-69)

      ‘‘LAND tenure, with all its implications for social organization, the distribution of wealth, and the use of natural resources, is one of the least understood topics in colonial Latin American history,’’ wrote one historian of landholding in colonial Mexico in the 1970s.¹ Although some advances have been made in the subject since then, the assessment is still accurate. With the exception of precious metal, land was the main form of wealth and the bedrock on which Latin American colonial society was constructed.² Land not only provided a stream of wealth to be used by the owner but also was frequently...

    • CHAPTER 7 Commercial Law
      (pp. 70-76)

      THE extraction of wealth and the concomitant exploitation of native and imported labor were the overall aims of colonial commerce.¹ Geographical distances from Spain, the enormous size of the new colonies, and the lack of an established colonial infrastructure and available commercial tools hindered such activities. Spain responded to these aims by creating a new commercial framework. The crown established new colonial institutions and legal machinery, and adapted and expanded existing governmental structures and legal rules to the new commercial environment. The crown created new institutions, such as the Board of Trade and the colonialconsulados, that grew on both...

    • CHAPTER 8 Slavery
      (pp. 77-83)

      AT the time of Spanish conquest, the institution of slavery was already well known to both Spaniards and Indians. Indeed, slavery was deeply ingrained in the Spanish mentality and was ‘‘taken completely for granted as an ancient tradition.’’¹ Nonetheless, slavery on the Iberian Peninsula was very limited when compared to the colonial expansion of the institution.² Slaves were used to provide all sorts of labor, and in the colonial period few questioned either the morality or legality of the practice. Two general types of slavery, African and Indian, existed in the colonies. Early royal legislation prohibited Indian slavery, except in...

    • CHAPTER 9 Indian Status and Indian Land
      (pp. 84-94)

      THE native populations of the Spanish colonies were new to Spanish experience, thought, and in turn, law. From the colonizer’s point of view, the nature of proper relations with these people remained a persistent question. How were they to be incorporated into Castilian social and legal structure? One overriding consideration was the duty of the Spanish to evangelize amongst the Indians. This was a crown obligation on which the very claim to America rested.¹ Numerous concerns and different interpretations arose concerning Indian status, labor, protection, and land. A significant amount of legislation in the colonial period addressed these concerns, yet...

  8. Part II: Independence and the Nineteenth Century
    • CHAPTER 10 Constitutions, Codes, Caudillos, and Commerce PRIVATE LAW AND NATION BUILDING
      (pp. 97-101)

      WITH unwitting irony the countries that struggled so hard to shed the Spanish yoke turned mostly to borrowed European sources in constructing their new national legal systems. France, and to a lesser extent the United States, provided the political philosophy and other legal models that could be easily co-opted. From the beginning, revolutionary leaders sought to establish new rules of private law. Indeed, in 1822, both O’Higgins in Chile and Santander in Gran Colombia proposed the French codes as new legislation.¹ Thus, there was something that intimately tied a new country to new law; national law was an expression and...

    • CHAPTER 11 Private Law and Independence
      (pp. 102-106)

      THE newly independent republics of Latin America faced a number of similar difficulties. Despite their recent independence from Spain and their political independence from each other, they shared some common experiences, heritage, and challenges. Nonetheless, many of the newly independent countries fought internal struggles concerning the political directions they would take. Internal divisions were often between liberals and conservatives, and these ideologies were foundational aspects of political and legal developments in the region. Very generally, liberals embraced the equality of persons and tended to be associated with anticlericalism and republican values in the Enlightenment tradition. Liberals often favored local or...

    • CHAPTER 12 Structures and Courts
      (pp. 107-115)

      INDEPENDENCE led to new institutions created under the new constitutions of the separate republics.¹ Governments legitimized themselves after independence by creating and staffing judicial institutions among other means. Bolívar, for example, published more than thirty decrees related to the courts and their judges between 1817 and 1830.² Despite the solidity constitutional language might imply, many of these institutions were in a fluid and uncertain condition during the early decades of the nineteenth century. Institutions depended on political stability, state financial resources, and the quality of and number of personnel available to fill essential positions. It was usually only after several...

    • CHAPTER 13 Legal Education and Lawyers
      (pp. 116-124)

      INDEPENDENCE brought new ideas about society, government, and law that were reflected in legal education and the profession. Ideas of human equality paradoxically meant that a broader range of students would be pulled into the elite world of legal studies and practice. Law provided social mobility. Legal education, as training for the governing classes, was subject to close governmental scrutiny and to contested rivalries of liberal and conservative views that could reach into minute curricular choices. In the mid nineteenth century, as codification became a reality, the mostly conservative traditional nature of legal education was challenged by new ideas of...

    • CHAPTER 14 Sources
      (pp. 125-131)

      THE sources of private law did not change immediately on independence. With few exceptions, new countries continued to use the colonial materials for questions of property, testaments, family law, contracts, and commerce. The provisions of new constitutions sanctioned appeal to these sources and laws governing procedural aspects of newly established courts. By the mid nineteenth century, codification radically changed the structure and content of private law. This chapter addresses precodification sources, practioners’ works, and treatises. It also notes some of the concerns raised as countries moved toward codes. The process and nature of codification are discussed in the next chapter....

    • CHAPTER 15 Codification
      (pp. 133-142)

      NATIONAL officials and legal specialists understood that civil law was integral to establishing new countries and their institutions.¹ Lawyers, professors, judges, and politicians criticized the confusing, labyrinthine nature of the postindependence civil law.² When replacing this system of law, Latin American countries turned to the legal systems of other countries, borrowing and transplanting these foreign laws. The very process of codification was consistent with liberalism and the shedding of the Spanish colonial past and its hierarchies. Notions of rational lawmaking and of law as a science informed the content and structure of codification. Codes not only established rules for the...

    • CHAPTER 16 Personal Status
      (pp. 143-149)

      REVOLUTION, independence, and the creation of new nations were accompanied by new political, social, and as a result, legal conceptions of the individual. These events brought about foundational changes in the legal status of individuals and in society. The most significant change was the abolition of slavery, but other groups were also affected. This chapter will discuss the manner in which private law developments attempted, and at times succeeded, to restructure certain aspects of society related to race, alienage, family, and sex. As revolutionary juntas made pronouncements abolishing slavery or removing certain burdens attached to Indians, Spain and its colonies...

    • CHAPTER 17 Land and Inheritance
      (pp. 150-154)

      WAR and the political unrest in the decades following independence provided a good opportunity for wealthy landholders to amass giant estates under their control. Colonial crown mechanisms established to curtail the political power of Creole families by restricting their ability to build giant landed estates disappeared. If independence and liberalism meant the equality of Native Americans, their lands would no longer be subject to special administrative and legal regimes developed in the colonial period.¹ There were also ideological objections to communal landholding, and governments moved to sell land to individuals.² In this new environment, the methods for enlarging landholdings varied....

    • CHAPTER 18 Commercial Law
      (pp. 155-164)

      THE competing interests of liberal and conservative ideologies present at independence influenced the development of commercial law. In the colonial period, many areas of commerce were under state control or supervision. With independence, it was uncertain which aspects of commerce would be liberalized and which would remain under closer state scrutiny. Some activities were traditionally so closely related to the state and its finances that state control continued in this period. The most important example is mining. Many other areas were removed from state control, or at least saw the involvement of the state in their ambits greatly reduced.

      On...

  9. Part III: The Twentieth Century
    • CHAPTER 19 From Europe to America
      (pp. 167-171)

      IF the most important change in law in Latin America during the nineteenth century was the codification of law, constitutionalism, another tradition that had begun with independence, consumed the energies of legal specialists in the twentieth century. Indeed, some argue that in recent times in civil law jurisdictions, the constitution has replaced the civil code as the central text around which all law, private and public, revolves.¹ While nineteenth-century Latin American constitutions were based mostly on French and U.S. models, twentieth-century constitutions reflect regional and national development and innovation. For example, the Mexican Constitution of 1917 has been called ‘‘the...

    • CHAPTER 20 Structures and Courts
      (pp. 172-183)

      AS in the early republic period, in the twentieth century the courts and governmental structures were the products of constitutions. After briefly describing general features for this period in Latin America, this chapter addresses judicial reform, one of the central issues concerning courts in Latin America for the past decades. Procedural aspects and institutions related to alternative dispute resolution are addressed at the end of this chapter.

      This work does not attempt to deal with constitutional law, but the sources of late-nineteenth- and twentieth-century constitutionalism inform the understanding of courts in Latin American countries. Even though the twentieth century has...

    • CHAPTER 21 Legal Education and Lawyers
      (pp. 184-193)

      LEGAL education in Latin America has undergone much change during the past one hundred years. In the past fifty years the region has seen experimentation with and sometimes successful steps toward new methods of instruction, clinical education, and a wider array of institutions offering legal instruction, especially to less-privileged students. Greater access for women to study law, an increased sense of the role of law in national politics and society, and a recent onslaught of postgraduate courses in law have also come about in the same period. Much, however, has remained the same since the mid nineteenth century. Certainly the...

    • CHAPTER 22 Sources
      (pp. 194-199)

      IN 1950, one famous civil law professor and reviser of Argentina’s Vélez code could assert that for Latin America ‘‘French law has not lost its primacy, be it in its norms, or in its commentaries.’’¹ He was looking back as a new wave of foreign influences was rushing in. As described earlier, World War II effectively ended the period of strong European influence on Latin American law, although, of course, some influence continues today. From the 1950s to the present day, Latin American private law has been influenced more by internal legal developments, the private law of the United States,...

    • CHAPTER 23 Personal Status
      (pp. 200-204)

      ALTHOUGH nineteenth-century constitutions in Latin America made progress in reducing privileges in society, many advances in social and legal equality had to wait until the twentieth century. Twentieth-century constitutions expanded the ambit of protection. For example, under the Bolivian Constitution of 1967, ‘‘constitutional guarantees of individual liberties were broadly expanded, and the inviolability of individual dignity and freedom was linked with guarantees against discrimination based upon race, color, sex, language, origin, political creed, economic or social status, or ‘any other reason.’’’¹ Numerous other Latin American constitutions contain similar aspirations.² Of course, such language all too often operated only on a...

    • CHAPTER 24 Land and Inheritance
      (pp. 205-209)

      TWENTIETH-CENTURY Latin American constitutions generally assert the constitutional protection of private property. Several of these constitutions have qualified the protection of private property by stating that, as in the Bolivian Constitution of 1967, its use must be consistent with the national interest, or that, as in the Venezuelan Constitution of 1961, property has a social function.¹ For some countries, this social theory of property dates to the late nineteenth century. For example, the Colombian Constitution of 1886 declared, ‘‘Property is a social function that implies obligations.’’² Many of these constitutional provisions reflect the Catholic church’s recognition of private property as...

    • CHAPTER 25 Commercial Law
      (pp. 210-217)

      COMMERCIAL law in Latin America in the twentieth century continued to be governed by commercial codes, many dating from the middle and late nineteenth century. In light of the rapid and recent economic changes in Latin America and the desire for greater international investment, many of the older commercial codes have been criticized as stifling economic development.¹ Response to such concerns has been swift in the past few decades. In some areas, such as business organizations and their regulation, legislation has grown so much that some express concerns that overregulation is hindering efficiency.² Furthermore, even the simplest forms of establishing...

    • CHAPTER 26 Land Reform
      (pp. 219-227)

      INDEPENDENCE did little to change the daily existence of the agricultural laborer, and working on the estate of a royal landholder in the colonial period was much like working on the estates of alatifundista. The social tension of such great inequalities in wealth and of widespread rural poverty continues to plague Latin America today. Countries of the region historically and presently exhibit very unequal distribution of land, with a wealthy, small percentage of the population owning most of the land.¹ Attempting to ease the tensions resulting from this inequality, some governments have undertaken land, or agrarian, reform. Where revolutions...

    • CHAPTER 27 Development, Investment, Globalization, and an Exception
      (pp. 228-234)

      ALTHOUGH economic development and social progress are universal goals of independent modern countries, the pressures of the Cold War during the 1960s and 1970s resulted in various U.S. influences on Latin American legal development with these aims in sight. Both the land reform efforts brought about by the Alliance for Progress and the attempts to reform Latin American legal education can be seen as examples of projects and initiatives to strengthen legal institutions and the rule of law in Latin America during this period. The hopes were that changes in law and legal education could create an environment conducive to...

    • CHAPTER 28 The Gap
      (pp. 235-238)

      EVEN in the most smoothly running and politically stable countries of Latin American a wide gap exists between the law as written and the law as practiced. The gap between the law and the fact, rhyming smartly in Spanish asel derecho y el hecho, has been a perplexing problem for historians of Latin American law and continues to be a frustrating reality for citizens, businesses, lawyers, and judges today. This brief chapter examines some of the viewpoints about this gap.

      In the colonial period, with its highly structured bureaucracy, minute reporting requirements, and the lack of the peninsularfueros...

  10. Conclusion: THE UNFINISHED BUSINESS OF LATIN AMERICAN PRIVATE LAW
    (pp. 239-242)

    PRIVATE law in Latin America has tracked the social and economic needs of those in power throughout its history. In the colonial period, it provided the rules for the passage of property and economic transactions that enabled Spain to exploit economically its colonies, to construct a Spanish society in the New World, to accommodate new legal objects, to create cost effective sources of labor, and to provide a basis of religious evangelization. Immediately on independence, private law rules changed little, with the exception of those rules related to the new republican values brought in by revolution. New private law rules...

  11. NOTES
    (pp. 243-286)
  12. GLOSSARY
    (pp. 287-300)
  13. BIBLIOGRAPHY
    (pp. 301-320)
  14. INDEX
    (pp. 321-343)