After about 150 years of institutional history, historians, legal anthropologists, and lawyers shifted the focus of legal history to social analysis and effects of laws, institutions, and legal practices, opening a fruitful dialogue between legal and social history on the role of subaltern agents. These new studies sought to move away from institutional history and its formalist gloss of laws and institutions as the only relevant structures and issues in legal history. These scholars reconceptualized the law as an instrument of negotiation and assertion of the rights that both elites and plebeians used before the courts. As such, the law was seen as a complex landscape of social, cultural, and political factors beyond the traditional “written rule.” Law scholars have called for the need to restore law to its historical and cultural context, thus reclaiming a space for legal history and the anthropology of law within the schools of law in Peru. The legal instrument was also part of the Spanish imperial project. As is well known, Spain expanded its extraterritorial power through complex and plural laws and a legal bureaucracy. Social and legal historians have demonstrated that Spaniards and Portuguese in the Americas used laws to secure the possession of new lands and other sources of wealth, but subaltern groups also contested imperial power legally. Ethnohistorical approaches thus entered the field of legal history, showing how Amerindians seized upon their legal right to contest Spanish policies and the actions of authorities and colonists in courts of law at the local and regional levels, and at the highest level of the Council of the Indies. Afro-Peruvian women and men, as well as members of the castas (racially mixed groups), used the legal system extensively as well, and their legal and rhetorical strategies enriched the legal history of colonial Peru. Social historians of the Andes have also diversified the range of conventional sources incorporating notarial records, judicial proceedings, ecclesiastical registers, and Inquisition documents, among others, to the corpus of their primary sources. The result has been a body of literature that identified the diversity and plurality in the production of legal phenomena in Spanish America as the subaltern groups (caciques [Indigenous chiefs], as well as Amerindian and Afro-Peruvian women and men) entered the colonial legal forum and engaged its discourses. By necessity, however, this bibliography is selective, and authors are featured in different sections.
Colonial Legal Encounters: Derecho Indiano and Customary Law
The formation of the Spanish Empire involved the gradual expansion of its pluralistic legal system upon a myriad diverse groups and complex normative practices in the Andes. Thousands of written laws, doctrines, a massive legal bureaucracy, royal courts, and cultural models of law shaped the legal empire. As Spain had to grapple with the precolonial legal cultures of Andeans, the ensuing legal system was a highly negotiated one. During the state formation process of the 1900s, historians partook in creating a national discourse based on the rule of law and the legislative and judicial powers by studying the historical evolution of the modern legal system. Initially, they attributed a significant role to the Laws of the Indies, otherwise known as Derecho Indiano, in defining the course of colonial history. Levene 1920 and Temple 2014 (originally 1965) describe the legal notions and institutions that organized colonial life, the influence of Castilian doctrines as sources of the Derecho Indiano, and the hegemony of the colonial state. These historians were all aware that the law was not monolithic and static, but rather was shaped by social forces outside the courtrooms. From the 1960s onward, leading legal scholars such as Víctor Tau Anzoátegui included a focus on the social history of law that began to relativize previous legal notions (see Tau Anzoátegui 2001). The new studies—Díaz Rementería 1976, Graubart 2015, MacCormack 1997, and Ramírez 2005—look at the transformation and re-creation of the Andean traditional norms after the Spanish conquest. Legal historians paid attention to caciques’ testimonies and notions of justice, substantiating and claiming the recognition of their “customary law” (uso, fuero, costumbre) in the colonial courts, while advocates defended pre-Colombian customary practices regarding tribute, land tenure, and succession to chieftains. Historians had typically employed Spanish chronicles to reconstruct the pre-Columbian legal tradition. Graubart 2007 and Guevara Gil 2003 used 16th-century disputes over lordship and land tenure to study the continuity and changes of the pre-Columbian legal traditions and notions of authority, while also discussing the meaning of pre-Columbian Andean “laws” and justice and the indigenous appropriation of medieval Castilian notions. New notions in the legal history lexicon appeared in Mumford 2008 and Premo 2014, such as “litigation ethnography,” “Creole enlightenment,” and “popular enlightenment.”
Díaz Rementería, Carlos. “La costumbre indígena en el Perú.” Anuario de Estudios Americanos 33 (1976): 189–215.
A classic article in the field, focusing on the incorporation of pre-Hispanic laws into the new colonial legal system through the recognition of indigenous law by Derecho Indiano and Castilian law. Pays attention mainly to the role of legislation, jurists, and administrators rather than indigenous agents.
Guevara Gil, Jorge Armando. “Los caciques y el señorío natural en los Andes coloniales (Perú, siglo XVI).” In Actas de Derecho Indiano: XIII Congreso del Instituto Internacional de Historia del Derecho Indiano. Vol. 2. Edited by Luis E. González Vale, 137–158. San Juan: Asamblea Legislativa de Puerto Rico, 2003.
Explores the appropriation of the medieval notion of señor natural by caciques in 16th-century Peru. Argues that Andean lords made a creative use of this medieval doctrine to confront colonialism and strengthen their own political positions. The article examines the definition of the notion in Castilian law (especially in the Siete Partidas), and the influences of Thomas Aquinas and Bartolomé de las Casas.
Graubart, Karen. With Our Labor and Sweat: Indigenous Women and the Formation of Colonial Society in Peru, 1550–1700. Stanford, CA: Stanford University Press, 2007.
A discussion of the indigenous women economic and identitary changes in colonial Peru, by using notarial and other legal sources. Chapter 5 examines the reinvention of customary law by using legal cases of cacicas defending their right to political office, and arguing that indigenous litigants appropriated Castilian law to reproduce their own past and laws. Overall, the book addresses changes in indigenous women’s lives as result of the colonial multiethnic interaction.
Graubart, Karen. “Learning from the Qadi: The Jurisdiction of Local Rule in the Early Colonial Andes.” Hispanic American Historical Review 95.2 (May 2015): 195–228.
The author examines the question of jurisdiction, the legal space in which authorities exerted their power. To do so, she focuses on both authorities in late medieval Spain, during the Reconquest, and the early-16th-century caciques. By reviewing the role of the qadi (Islamic judge) in medieval Spain, the author compares it with the role and jurisdiction of early colonial caciques in Peru. Indigenous jurisdiction was invisible for historiography. The local authorities exerted their power and reshaped the institutions of Castilian law.
Levene, Ricardo. “Un ensayo de Derecho consuetudinario y la doctrina de los juristas en la formación del Derecho Indian.” Hispanic American Historical Review 3.2 (May 1920): 144–151.
Levene coined the long-lasting expression Derecho Indiano in 1916, in reference to the Spanish laws for the overseas colonies in the colonial period. Arguably, Levene was the founder of an institutional school of legal history in Argentina, and he was a prominent figure in the study of Spanish colonial law. This field was further developed by legal historians such as Altamira, Basadre, Ots Capdequí, Zavala, and others. Levene discusses the recognition of the precolonial customary law by the Derecho Indiano and the labor or jurist like Juan de Solórzano y Pereyra, among other themes.
MacCormack, Sabine. “History and Law in Sixteenth-Century Peru: The Impact of European Scholarly Traditions.” In Cultures of Scholarship. Edited by S. C. Humphreys, 277–310. Ann Arbor: University of Michigan Press, 1997.
Argues that Spaniards, because their lenses were tainted with contemporary European ideas, interpreted the Inca as Roman analogues. Claims that Andeans themselves, as in the case of Tupac Yupanqui, articulated their own past in similar Roman Christian frameworks. States that jurists like Hernando de Santillán and Polo de Ondegardo studied the “legal” architecture of the Incas to better apply colonial policies such as the tributary system and the recognition of customary law.
Mumford, Jeremy. “Litigation as Ethnography in Sixteenth-Century Peru: Polo de Ondegardo and the Mitimaes.” Hispanic American Historical Review 88.1 (February 2008): 5–40.
Explores how indigenous litigation was a means for an ethnographic approach. Examines two legal cases in Charcas, and the role of Licentiate Polo de Ondegardo, a prominent jurist and legal advisor of viceroys and archbishops, in the recognition of pre-Hispanic traditions. The article shows how Spanish economic and political interests were crucial in the adoption of pre-Columbian legal institutions.
Premo, Bianca. “Custom Today: Temporality, Customary Law, and Indigenous Enlightenment.” Hispanic American Historical Review 94.3 (August 2014): 355–379.
A discussion of “custom” and its changes in the changing 18th century. Two legal cases from Peru and one from New Spain are selected for comparison. Custom was reshaped and transformed by the introduction of a discourse of virtue and merit, two newly enlightened ideas. Legal agents, both professionals and laymen, collaborated in this process of reshaping of the concept. Customary law appears as fluid and changing.
Ramírez, Susan E. “Amores prohibidos: The Consequence of the Clash of Juridical Norms in Sixteenth-Century Peru.” The Americas 62.1 (July 2005): 47–63.
An example of legal ethnohistory, this study examines the “clash” of Spanish and Andean legal traditions in the second half of the 16th century. Spaniards imposed their legal ideas (e.g., “cruelty”) and derogated some legal practices of Andeans, such as the right to punish their subjects, including taking their lives, if they committed specific crimes. Offers the illustrative cases against caciques don Gonzalo and don Juan Collique of northern Peru, accused of having executed their subjects.
Tau Anzoátegui, Víctor. El poder de la costumbre: Estudios sobre el Derecho consuetudinario en América hispana hasta la Emancipación. Buenos Aires, Argentina: Instituto de Investigaciones de Historia del Derecho, 2001.
A revisionist work advocating the need to supersede the focus on state normativity and restore the law to its historical context. The role of social groups and diverse normative traditions in the formation of the law, along with a social history of the legal profession and the circulation of legal information became Anzoategui’s scholarly agenda. Argues that customary law was one of the main sources of law in colonial times.
Temple, Ella Dunbar. Instituciones. Lima, Peru: Universidad Nacional Mayor de San Marcos, 2014.
A compilation of c. 1965 lectures that reads the history of law through the lenses of “institutions,” focusing on long-lasting legal categories and political structures. Examines pre-Columbian laws, the role of Inca elites, the emergence of colonial law, legal education at the University of San Marcos, and biographies of prominent jurists. Temple was one of the first females in teaching at the University of San Marcos in 1945.
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