A Companion to Latin American Legal History (Legal History Library, 64)

Front Cover Half Title Series Information Title Page Copyright Page Contents Figures and Tables Contributors Introduction 1 A Brief Historiography of Latin American Law 2 Overview of Chapters 2.1 Concluding Reflections 2.2 Gracias References Chapter 1 Law before European Contact: Mesoamerica 1 Challenges in Understanding Mesoamerican Cultural Concepts and Categories 2 Aztec Jurisprudential Graphic Expression: The Famous Example from Texcoco, Mexico 3 Conclusions References Chapter 2 The Sun’s Mandates: Customary Law in the Andes 1 An Empire of One Law and One Birth 2 Commonly Understood Customs for Communal Living 3 Other Crimes and Punishments 3.1 Irreligiosity, Treason, and Rebellion 3.2 Murder 3.3 Theft 4 Other Norms 4.1 Succession 4.2 Domestic Laws 5 The Sun’s Will and Divine Retribution References Chapter 3 Law in Spanish and Portuguese America: The Early Colonial Period 1 Introduction 2 The Justification of the Conquest 2.1 Historiography of Spanish Colonial Law 2.2 Sources of Spanish Colonial Law 2.3 Administration and Its Controls in Spanish America 2.4 Substance of Spanish Colonial Law 2.5 Portuguese Colonial Law 3 Conclusion References Chapter 4 From Justice to Law: Late Colonial and Early Republican Eras 1 Introduction 1.1 Independence: Parallel Applications of Law in Wartime 1.2 Jurisdictions and Judicial Reforms: The Prioritization of Royal and National Law 1.3 Criminal Law: Social Control and Rights Claims 1.4 Civil Law: From Custom to Rights 2 Conclusion: From Justice to Law References Chapter 5 Liberalism 1 Legal Change, 1830–1880 2 The Geography of Legal Rule 3 The End of Discretion 4 Legal Changes, 1880–1930 5 Conclusion References Chapter 6 Enacting Legal Reforms, Reshaping Modern Societies: The Transformation of Latin American Law from 1930 to the Present 1 Introduction 2 Populist Regimes, Corporatist States, and the Socialization of Law (from the Late 1920s to the 1950s) 2.1 Social Constitutionalism and Its Projection towards State Politics 2.2 Adapting Private Law to New Social Values 3 The Cold War Heyday: Law in Times of Radical Politics (from the 1960s to the Early 1980s) 3.1 Socialist Revolutions and Their Legal Strategies 3.2 Modernization through an Iron Fist: The Bureaucratic-Authoritarian Model 4 Neoliberal Modernization: From the Rule of Law Revival to the Politics of Rights (after the Mid-1980s) 4.1 Democratization and the New Constitutional Regime 4.2 Restraining Power by Legal Means: Free Markets, Citizenship, and Accountability 5 Quo Vadis Latin American Law? References Chapter 7 Legal Education and the Legal Profession 1 The Iberian Period 1.1 Legal Education in Spanish America 1.2 Lawyers 2 Nineteenth and Early Twentieth Centuries 2.1 Legal Education 2.2 Lawyers 3 From National Development to Globalization 3.1 Legal Education 3.2 Legal Profession 4 Conclusion References Chapter 8 The Panorama of Indigenous Legal History 1 Historical Processes 2 Methodological and Historiographical Issues 3 Recent Directions References Chapter 9 Africans and Afro-Americans 1 The Iberian Heritage 1.1 The Law of Castes and Slavery 2 Independence and Emancipation 3 Final Abolition: Cuba and Brazil 4 Post-emancipation References Chapter 10 Enslaved Humans 1 Litigating Slavery and Freedom 2 Becoming an Enslaved Person: The Role of Possession 3 Between Slavery and Freedom 4 Litigating the Contours of Slavery: Family and Masters’ Mistreatment 5 Enslaved Persons, Abolitionism, and the Making of National States 6 Gendered Dimensions of Slavery and Freedom 7 Final Remarks References Chapter 11 Women 1 Introduction 2 Colonial Period 2.1 Gender and New World Marriages 2.2 Inquisition 2.3 Law and Enslaved Women 2.4 Property and Commerce 2.5 Women in an Era of Reform 3 National Period 3.1 Changes, Continuity, and Honor 3.2 New Rights and New Powers 3.3 Suffrage 3.4 Sex Work and the Law 3.5 Reproduction, Women’s Health, and Abortion 3.6 Violence against Women 4 Reflection References Chapter 12 Immigrants and Outsiders 1 Before Independence 2 After Independence: The Nineteenth Century 3 Excluding the Foreigner: The Twentieth Century 4 Developments since the 1990s 4.1 The Salience of International Human Rights Law 4.2 The Emigration of Latin American Nationals 4.3 Regional Integration Processes 5 Key Challenges Moving Forward 6 Conclusion References Chapter 13 Peasants and Workers 1 Introduction 1.1 The Colonial Era (1500s to 1810) 1.2 Independence 1.3 Toward Social Legislation 2 Conclusion: The Neoliberal Turn References Chapter 14 Land and Other Property 1 Introduction 2 Allocation Paradigm 2.1 Native American Land Relations 2.2 European Access to Lands in the Americas 2.3 Allocating Multiple Interests 2.3.1 Individual 2.3.2 Communal 3 Liberal Paradigm 3.1 Codification 3.2 Encapsulation 3.3 Pollination 4 Social Function Paradigm 4.1 Gestation 4.2 Reception 4.2.1 Social Constitutionalism 4.2.2 Doctrine of Abuse of Rights 4.2.3 Land Reform 5 Closing Remarks References Chapter 15 Commercial Law, Business, and Commerce 1 Development of Activity and Commercial Law in the Indies Law 2 Commercial Law in the Nineteenth Century: Codification 3 Conclusion References Chapter 16 Law and Labor Rights 1 Derecho Indiano and Workers 2 Independence and the Formation of National States 3 The Shaping of Modern Labor Law 4 Crisis of Labor Law at the End of the Twentieth Century References Chapter 17 Criminal Law 1 Introduction 2 Colonial Period 2.1 General Traits 2.2 Law in Books, Law in Action 2.3 Colonial Justices, Domestic Powers, and Police 2.4 Criticism and Moderate Reformism 3 Independence and Constitutional Culture 3.1 New Constitutional Settings 3.2 Insurgences, Restoration, Resiliencies (1810–1850) 4 Towards a ‘Modern’ Criminal Law: Codification, Science, and Police Power 4.1 Modernity’s Double Face 4.2 Criminal Law Codification: First Experiences 4.3 Liberalism, New Codes, and Scholarship 5 The Twentieth Century and Contemporary Issues 5.1 New Scientific Approaches, New Codes 5.2 Contemporary Challenges References Chapter 18 Filiation, Marriage, Family, and Domestic Conflicts 1 Sex and Procreation before Marriage 2 Family Formation and Marriage in Colonial Society24 3 Domestic Violence, Divorce, and Civil Law Reform 4 From the Domestic to the Public, and the International51 5 Conclusion References Chapter 19 The Church 1 Introduction 2 The Royal Patronage and Colonial Law 3 Independence 4 Nations, Liberalism, and Conservatism 5 The Twentieth Century, Revolution, and the Rise of the Social 6 Recent Times 7 Conclusion References Chapter 20 The Welfare State 1 From the ‘Social Question’ to the ‘Truncated Welfare State’ in Latin America 2 Circulation of ‘Social Legal Thought’ and the Construction of the Welfare State in Latin America 3 Latin American Social Constitutionalism 4 Conclusions References Chapter 21 Constitutions, Rights, and Government 1 Introduction 1.1 Latin American Constitutionalism: Between History and Historiography 1.2 Some Methodological Remarks 2 The Crisis of Iberian Monarchies and Catholic Constitutionalism 2.1 Setting the Grounds for Latin American Constitutionalism: History vs. Constituent Will 2.2 The Constitutions 2.3 Basic Features of Early Latin American Constitutionalism 2.4 Civilization or Barbarism 3 Liberal Constitutionalism and Oligarchic Republics 3.1 The Individual and the State 3.2 The Constitutions 3.3 Oligarchic Republics: Basic Features of Liberal Constitutionalism 3.4 Imaginary Citizens, Failed Nations 4 The Constitution in the Twentieth Century 4.1 Back and Forth in the Chronology: Mexican Revolution and the History of Constitutionalism 4.2 New Actors: Personal Leadership and Political Parties 4.3 International Order and Latin American Constitutionalism 4.4 Constitutional Decline in Latin America: Populist Authoritarianism and Military Dictatorships 5 Concluding Remarks: Present and Future of Latin American Constitutionalism References Chapter 22 Legal Pluralism 1 Early Modern Legal Pluralism and Empire 1.1 Legal Pluralism – from the Colonies back to Europe 1.2 Legal Pluralism and Modernity 1.3 Latin American Modernity 1.4 Present-Day Legal Pluralism 1.5 The New Latin American Legal Pluralism: Old or New? References Index Back Cover "This comprehensive volume offers fresh insights on Latin American and Caribbean law before European contact, during the colonial and early republican eras and up to the present. It considers the history of legal education, the legal profession, Indigenous legal history, and the legal history concerning Africans and African Americans, other enslaved peoples, women, immigrants, peasants, and workers. This book also examines the various legal frameworks concerning land and other property, commerce and business, labor, crime, marriage, family and domestic conflicts, the church, the welfare state, constitutional law and rights, and legal pluralism. It serves as a current introduction for those new to the field and provides in-depth interpretations, discussions, and bibliographies for those already familiar with the region's legal history. Contributors are: Diego Acosta, Alejandro Agüero, Sarah C. Chambers, Robert J. Cottrol, Oscar Cruz Barney, Mariana Dias Paes, Tamar Herzog, Marta Lorente Sariñena, M.C. Mirow, Jerome G. Offner, Brian Owensby, Juan Manuel Palacio, Agustín Parise, Rogelio Pérez-Perdomo, Heikki Pihlajamäki, Susan Elizabeth Ramírez, Timo H. Schaefer, William Suárez-Potts, Victor M. Uribe-Uran, Cristián Villalonga, Alex Wisnoski, and Eduardo Zimmermann"-- Provided by publisher