Las audiencias y la administración de justicia en las Indias

For Eduardo Martiré, one of Argentina’s most distinguished legal historians of the last generation, the audiencias and their magistrates embodied the essence of Ibero-American notions of royal justice. Relying largely on Spanish-language secondary literature and collections of published documents, Martiré focuses on the oidores since these high court magistrates were at the center of the colonial judicial administration. Colonial law, he reminds us, is not so much about formal law, but is more an expression of the personal conduct of these court officials and their interpretations of royal law. Critical of scholars who point to the seemingly arbitrary and inconsistent behavior of judges as evidence of the relative lack of institutional law and justice in the Indies, Martiré argues that deviations from the expected juridical order are best understood not as an absence of legal norms but rather as departures from existing ones.In the first part of the book, Martiré describes this juridical order and the foundational and evolving juridical principles that molded the colonial judicial system and guided the actions of its officials. In doing so, he offers a succinct overview of the medieval origins of European law and its adaptation in Spain and its colonies. Most noteworthy is his discussion of the transformation of universal European common law (ius commune) to country-specific royal law (ius proprium), a process that accelerated during the era of initial Spanish encounter and colonization when the crown created Derecho Indiano to provide solutions to unprecedented situations that emerged in the Indies. The second and more extensive part of the book measures the judicial behavior of the oidores against the time-honored, medieval model of the iudex perfectus, the perfect judge. Created to promote effective administration of justice, this archetype shaped the myriad of royal laws designed to ensure that honest, efficient, and competent men staffed the colonial high courts. Using the model as a way to assess the degree to which the oidores lived up to this ideal, Martiré enumerates many instances in which the high court magistrates conducted themselves in ways that ran counter to the law, such as owning property in their jurisdictions, marrying into local families, and bickering with the viceroys and other officials, to name a few of the transgressions. Despite their shortcomings, however, the late eighteenth-century Spanish monarchy called upon the high court judges to represent the now absolutist Spanish state, and by ending the residencias of the oidores in the 1780s, the crown ceased its effort to make these judges comply with the legal ideals of an earlier age. These “absolutist judges” (p. 179) were no longer held accountable to the model of “perfect judges” and, Martiré insists, were justifiably the targets of the Enlightenment-era reformers who condemned the judicial system of the Old Regime and paved the way for long-needed revolutionary and postcolonial changes to this outdated system.Although this book has much to offer, its largely doctrinal and institutional focus will not likely satisfy those historians who, by delving into the operations and popular uses of the local and high courts, seek to examine the law’s relationship with the larger colonial society. Most colonists experienced Derecho Indiano at levels below the audiencia, and the absence of any discussion of lower court judges might leave some readers wishing for more. Moreover, Martiré’s claim for Spanish Bourbon absolutism does not take into account the recent scholarship that questions the degree to which late eighteenth-century western European states were absolutist in practice, and thus he overlooks the relative independence that oidores continued to enjoy from the crown in the late colonial period. While he rightly notes that Bourbon kings and their ministers increasingly demanded full compliance with the law and an end to judicial discretion to promote regal power, he does not explore whether their exhortations modified colonial judicial practices. By not probing beyond published accounts, he uncritically accepts the view that colonial judicial administration was beset with a litany of incurable problems that could only be solved by the overhaul wrought by the 1812 Constitution and subsequent postcolonial constitutions.Despite these shortcomings, there is much of value in this book. For scholars looking for the doctrinal background to the operation of the judicial system, Martiré’s synthesis of the existing Spanish-language literature offers a most useful panorama of the ever-changing juridical and political doctrines that shaped the broad contours of judicial administration throughout the colonial era and beyond. He shows that formal Spanish colonial law was the product of a dynamic, organic process that evolved from the Middle Ages through the Age of Revolution and into early national Spanish America. Ultimately, Martiré advises a younger generation of legal scholars who largely seek their answers in the operation of the law to also fully understand the norms that underwrote the colonial juridical order. He hopes that in this way they might find the justice they claim was lacking

Administration of justice · Colonialism · Common law · Economic Justice · Humanities · Order (exchange) · Political science · Sociology · Comparative constitutional jurisprudence studies · Historical Studies in Latin America · History and Politics in Latin America · Law · Philosophy