Law of the “Indies” (colonial heritage) Last updated 03 Oct 11 Latin American Law.

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Presentation transcript:

Law of the “Indies” (colonial heritage) Last updated 03 Oct 11 Latin American Law

Spanish pedigree 250BC – 710AD Roman law Fuero juzgo Moorish law Visigoth law Customary law

Alhambra

Spanish pedigree 710AD – 1492AD Corpus Juris Civilis Siete Partidas Moorish law Encomienda Customary law Fuero Real Fueros Canon law

Why study colonial law?

“Despite the new constitutions and codes that followed independence, general attitudes towards law continue to be conditioned by the colonial heritage … bureaucratic confusion, administrative delay, mistrust of government officials, and disrespect for law.” Keith S. Rosenn (Univ of Miami)

What is colonial law in Latin America?

Recopilacion (1567, 1680, 1805) Council of the Indies (1614) Viceroys Captains general Audiencias (judges) “The Church” Corregidor Cabildos (?) Minister of the Indies (1714) Peru New Spain Nueva Granada Rio de la Plata

The Viceroy Francisco de Toledo ( ) Why does LatAm call for strong leaders?

Real y Supremo Consejo de las Indias “I obey but do not execute” The modern administrative state?

Spanish colonial law …

Siete partidas New Recompilation (1567) Sources of private law “hodge-podge” Recompilation (1680) (9 books / recompiles 400,000 cedulas) Newest Recompilation (1805) Fuero Juzgo Fueros reales Ord. De Alcala Leyes de Toro Sources of public law “royal authority” Book I Religious affairs Book II Consejo o Junta de Guerra de Indias, Indies Council, Audiencias, Cancillerias, Juzgados, Orden de prelacion de la legislacion. Book III Virreyes, Capitanes Generales Book IV Discoveries, Mines, Cabildos Book V Corregidores, Alcaldes, Pleitos Book VI Indios, encomiendas Book VII Delitos y Penas, “Felonies and punishment” Book VIII Taxes and contributions Book IX Casa de Contratacion How did Spain claim indigenous lands?

Ordenamiento de Alcala 1.Accursius glosses 2.Bortolus commentaries 3.Canon law 4.Custom 5.Opinion of doctors 6.Reason (natural law) 7.Roman law 8.Royal fuero 9.Siete partidas Siete partidas Roman lawCanon law Opinions Accursius Bortolus if sinif reason Custom Royal fuero Alcalá de Henares

Corpus Juris Civilis Siete partidas Derecho patrio What did lawyers study? (what language?) Imperialium institutionum Commentarius (Vinnius) Corpus Juris Civilis

Why no self-government? (peninsulares vs. creoles)

Law's failure in Latin America is the standard background for projects of law reform over the past half century. They measure shortcomings based on legal constructs often incommensurate with local arrangements. As a result, no amount of simple law reform can undo such a constant and irrepressible image of failure. Viewed this way, Latin America's failed law … denies much of any value to existing law anywhere in the region. Consequently, this failed law formula for reform is a harmful device. Prof. Jorge Esquirol Florida Int’l – College of Law Taryn Kadar

… the colonies in general owe little or nothing to any care of ours, and that they are not squeezed into this happy form by the constraints of watchful and suspicious government, but that, through a wise and salutary neglect, a generous nature has been suffered to take her own way to perfection … Edmund Burke House of Commons (1775) Sam Wellborn

Relevance of Napoleon?

Portuguese colonial law …

Ordenacoes Alfonsinas (1446) Manuelinas (1521) Filipinas (1603) Brazilian Civil Code (1917) Treaty of Tordesillas (1494) San Paolo No compilations of public law!

End

Puerto Rico Puerto Rico ~ US Constitution?

"Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? … History will answer the question." Thomas Jefferson 1st Inaugural, 1801

The Iberian conquest fostered a common legal experience in Latin America. This heritage, however, was tainted by an ineffective and self-serving administration characterized by over-regulation and under- compliance, which left a legacy of administrative stagnation, bureaucratic confusion, institutional mistrust, and disrespect for the law that continues to condition general responses and attitudes towards the law throughout Latin America.