Empire of Law and Indian Justice in Colonial Mexico
Bibliographic Data
| ID | 2802901 |
|---|---|
| Authors | Andrew B Fisher (Carleton College, corresponding author) |
| Year | 2009 |
| Volume | 89 |
| Issue | 4 |
| Pages | 693-695 |
| Publication date | 2009-11-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | Hispanic American Historical Review (JOURNAL) |
| Journal identifiers | ISSN: 0018-2168 • E-ISSN: 1527-1900 |
| Publisher | Duke University Press (PUBLISHER • US) |
| DOI | 10.1215/00182168-2009-060 |
| OpenAlex | W2165569804 |
| Language | EN |
| Citations received | 5 |
Historians have long grappled with how to interpret derecho indiano, the laws and legal commentary that helped define and shape Spain’s colonial enterprise in the Americas. Early debates questioned whether to privilege its guiding spirit of protecting the crown’s indigenous vassals from abuse, or to recognize that the law arrived in the New World a dead letter given the realities of an imperial project predicated on racial hierarchies and exploitation. More recent scholarship acknowledges that the legal system was sufficiently responsive to prompt indigenous groups to adopt litigation as a means of protecting and furthering their interests, but argues that this engagement ultimately reinforced the state’s hegemony. Brian Owensby proposes that our understanding of colonial law has been obscured by a failure to recognize the incommensurability of the modern-day ideal of an impartial and rational “rule of law,” and the open-ended, pragmatic, and mediated process of the Spanish system. Law would be better conceptualized as a field of contestation intimately connected to power and politics.Owensby explores this idea by revisiting New Spain’s colonial Indian Court (the subject of Woodrow Borah’s acclaimed set of essays published in 1983) and indigenous engagement with the institution from its inception in 1590 to the transition to Bourbon rule in 1700. Indians, he shows, learned to appeal for royal protection (amparo) by presenting themselves as loyal vassals and miserables in keeping with an Iberian tradition dating back to the Siete Partidas. This strategy hardly resolved the inherent contradiction driving royal policy in the Indies — that the commonweal depended on compulsory labor and tribute from the very population seeking shelter — but it did allow Indians to use the law to carve out a space within colonial society, an opportunity that they seized with abandon.The heart of the book comprises six thematically organized chapters, each of which highlights a sphere of interest (such as land, labor, and municipal governance) that indigenous clients and their legal advisors pursued in court during this formative era. Overall, the chapters exhibit a fairly consistent structure. Drawing from existing scholarship, Owensby details how crown policy (congregación, composición de tierras, repartimiento, etc.) and secular trends (such as demographic collapse and recovery) spurred indigenous plaintiffs to seek redress. More compelling is the author’s wide-ranging discussion of the legal discourse framing these judicial contests and the relationships forged between Indians and court officials. Owensby faces several imposing methodological challenges, not least of which is the absence of summaries by judges detailing how they reached their decisions. The most significant, however, concerns how to extract Indian voices from petitions carefully crafted and massaged by non-Indian counselors. On the one hand, Owensby makes ingenious use of native-language sources, such as bilingual dictionaries and The Metaphors of Andrés Olmos, to suggest how Spanish legal discourse may have been understood and assimilated by indigenous litigants. More fundamentally, Owensby privileges the judicial process itself, which drew Indians into the courts and produced over time a collective repertoire of knowledge of legal precedent, argument, and rhetoric.The book’s principal strength rests on Owensby’s skillful reconstruction of representative case studies meant to illustrate how the courts served as a site of contestation for Indians and non-Indians alike. Rather than the means for seeking binding resolution to intractable legal squabbles, the law offered a venue for the aggrieved to air their complaints, to seek recourse (however temporary), and perhaps to reach some semblance of a mutually agreeable resolution with opposing parties. Significantly, the politics of law affected the judges as much as it did the litigants. The book is peppered with examples of magistrates struggling to make sense of competing truths (the account of one official’s vain efforts to determine the existence of a hill central to the resolution of a land dispute is especially evocative), or attempting to finesse the enforcement of a distant court’s decisions to safeguard public tranquility in a society fractured by multiple racial, ethnic, and class divisions. Likewise, a chapter on the 1660 Tehuantepec rebellion reveals a carefully orchestrated dance between the Audiencia judge appointed to mete out justice and various Indian governors and communities, who employed arguments and tactics drawn from a complex and evolving legal culture to exculpate themselves with differing degrees of success.In sum, Brian Owensby has provided a superlative study of indigenous people’s engagement with the law in seventeenth-century New Spain. Backed by an impressive body of research, the book strikes a pleasing balance between a bird’s-eye view of the philosophical underpinnings of the colonial legal system and a series of expertly rendered case studies that demonstrate the degree to which Indians sought out a distant sovereign’s attention in the hopes of attaining justice. Some readers may take issue with particular points of interpretation; to this reviewer’s eye, the sixteenth century comes off as almost too chaotic and turbulent in contrast to the more orderly story of the unfolding of the seventeenth-century legal process. Such criticisms aside, colonialists and legal scholars alike will find much to recommend in this important work
Appeal · Colonialism · Economic Justice · Empire · Hegemony · Ideal (ethics) · Indigenous · Institution · Political science · Politics · Power (physics) · Privilege (computing) · Scholarship · Sociology · State (computer science) · Subject (documents) · Historical Studies in Latin America · History · History and Politics in Latin America · Latin American history and culture · Law
| Citations per year | 0.45 |
|---|---|
| Citation span | 2015 - 2024 (10) |
| Highly cited | No |