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i n t r od uc t i on

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 understand-
ing the place of law in contemporary Latin American society. The historical
foundations of legal practices, viewpoints, and attitudes will become increas-
ingly important as the United States develops ever-growing economic, edu-
cational, 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 his-
tory of Latin American law, but this work provides an essential platform of
institutional and mostly autonomous legal history on which more critical his-
tories 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 de-
picts 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 grace-
fully 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 gener-
alizations and regional studies are problematic, as is the exclusion of non-
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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.1 The his-
toriography 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 uneasi-
ness 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 materi-
als. 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 simi-
lar topics are addressed, including courts, legal profession, sources of law, per-
sonal status, land and inheritance, and commercial law. Each part also con-
tains 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 develop-
ment, 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 overarch-
ing 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 pri-
vate 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 Euro-
pean contact, and that such systems of law both informed and affected colo-
nial and even present-day law. For the colonial period, private law facilitated
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xii L AT I N A M E R I C A N L AW
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economic extraction from the colonies and sought to replicate Spanish society
in a new setting while accommodating new legal objects. In the indepen-
dence period, private law responded to new republican values and national-
ism through substantive changes in rules and through codification based on
European models. For the twentieth century, private law responded to the in-
creasing demands of national commerce and social advances. An important
shift noted during this work is a decrease in the importance of imported pri-
vate 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 mat-
ters. 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 prob-
lematic 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 re-
cently been exploring other important aspects of Latin American law, espe-
cially constitutional law, criminal tribunals, and international human rights
and humanitarian law. Nonetheless, private law has been a somewhat ne-
glected subject. Land, inheritance, ownership, contracts, and business deal-
ings are important facets as well. This study should contribute some ideas
about these topics to the larger discussion.
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Latin American Law

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Texcocan supreme legal tribunal.