Customary Law and the Nationalist Project in Spain and Peru

The nationalist projects of the Latin American countries in the nineteenth century are only recently beginning to receive the attention they deserve. Andeanist ethnologists find this attention compelling. Many have perceived their mission as the search for parallels between contemporary villages and towns and pre-Hispanic cultural principles and social institutions, documented by ethno-historians such as Tom Zuidema and John Murra. This search for cultural continuities has been criticized by a new generation of ethnologists and historians, as it assumes that colonial and republican histories and regional differences are negative constraints on, rather then sources of divergence in, “Andean” mani-festations of society and culture. These critics support their claims by pointing to nineteenth-century nationalist projects, which have contributed to sociocultural innovation.1In their discourse on nationalist projects, nineteenth-century elites deprecated local institutions and ignored customary law; instead, they looked to the West for the institutional innovations on which to found modern, export-oriented states. In explaining this stance, legal historians of nineteenth-century civil codes have pointed to the influence of the French Civil Code of 1804, with its explicit rejection of customary law, in Latin America.2 In seventeenth-and eighteenth-century France, the judiciary used its extraordinary power to resist state efforts to centralize government and enhance its efficiency. The revolution called for a full-scale reordering of the law that would dismantle the power of the judiciary and return power to the people. The French Civil Code was a building block of that country’s own nationalist project following the fall of the ancien régime and subsequent social, economic, and legal changes. The compilers intended to dismantle the legal order of the previous regime and solidify the advances of the revolution. Although customary law, in particular the Coutume de Paris, provided important sources for the French Civil Code, its compilers rejected customary law in any form as a challenge to legislative and juridical centralization. Custom, along with case law and doctrinal interpretation, was subordinated to statute.3 French legal formulas appealed to the new Latin American states, because the French Revolution had inspired independence, while Spain carried the baggage of a former colonial power.4 The uncritical, practically word-for-word acceptance of the French Civil Code into the 1831 Bolivian Civil Code is cited as an example of its influence, reflecting the rejection of Spanish legal tradition.5Despite the silence on customary law in nineteenth-century nationalist discourse, recent archival research documents its unspoken influence.6 Customary law is known to have been a key element in processes of colonialism and post-colonialism.7 The subordination of customary law to legal codification was seen as part and parcel of national projects, and legal uniformity was an important step in forming a national identity out of diverse regional, ethnic, linguistic, and religious identities. Legal codes were grounded on the notion of citizenship and state-defined national identities. In effect, replacing customary law with uniform legal codes added to the imaginary community created by newspapers, signage, maps, and other materials printed in a national language. In this way, a common cultural heritage could reinforce the notions of shared citizenship that were so important to the construction of the modern nation-state.8The denigration of customary law in the nineteenth century contrasts with its public role in the politics of Andean nation-states in recent years. Indigenous political movements erupted in national and international political arenas in the 1980s and 1990s. And informal systems of justice helped fill a vacuum the local the in international and the of the of Many recent in the and of Latin American new to in and customary law, and research on legal and processes by the of with for of customary its to in the nationalist project of the nineteenth century is the in the of in nationalist project that customary law on institutional the of own civil and the nationalist discourse of the nineteenth-century and the of the a a of and a rather influence of the French Civil of law and power in France, was its colonial with the of customary law in Spain and the and in The French Civil Code in the of own civil Spain was of customary law the Latin American states. In the nineteenth a the nationalist project in customary law, was into customary law is with of that Spanish and Spanish as an state to to political and is the of local law and that to and have it as the of Spanish that of for the of customary law in while the French Civil Code the nineteenth-century codification of civil law in their as and their this the of law and power to the of the civil in and Spain the of the nineteenth in the nationalist projects as of their the a In created a of a that a role for as while Spanish a notion of local on customary In case were created out of the the and of the a influence on their customary law, following and as of and by that of of This of and in the between and the Customary law into in of national identity and in the it in the codification of state In customary law to as an for in the the construction of a in the the to customary law assumes legal the juridical of the community the of and Latin American and the to juridical rather in order to it the of and in the In Bolivian legal the legal of the community as part of to legal discourse of on the attention to customary law in the nationalist projects of the nineteenth rather the and of that this to legal on to and of state law, this to that customary state law is in is in to the In for state of to which to their own In they on legal in state in its of and and of an acceptance of customary law by the local and state law has been to in the of in in the of the nineteenth legal of state law and local legal law was to a legal the to and in the of the The and on by legal an important by the state to order to the legal the a influence the of and the of In customary law, in and was could found in and the and de by to new to the Customary law was in and in state law by the nineteenth in such as and law it to was the of law and to state civil and and as the of the of customary legal was an of state and by the century had been in The of for the had been into local and customary law documented and with customary law, and to and the of and the state their and political identities. law with local law in this The institutions, and a uniform legal the local and of the of the state legal by in customary for the codification of law, as as for documented to local and in and into the state into the of that the local their villages and towns power the state to to in their to state and local law were state in the of and the of the nineteenth the state had the ancien régime a with and The of efforts to order and the the had of the national was to a in and a of and were this to to its the of the nineteenth customary law was with by the The of customary and was for law and the judiciary and The called for the of a uniform civil and in the of the century was support for the The of a uniform and the of and codes a In a a civil for its on legal on the of the French Civil law the as to such as The government the of the and the and it a the project into to law in the had the of a in the a to the to the of the of the of of and of The subsequent the the on legal a civil while out the and of the would have been the of the civil were to the between and civil a civil was the efforts of a and of justice the to find a the of in the which had in a de to the in The law that the would to the principles and for the of the civil this a would then the principles into The law was it in in a on out by the of justice were the and to find the state law was and institutions had to the of law by a of into an the of the to this In the of legal in and other were customary law the local In with the the civil the of state law in a for on which the was In this local was to and in its the principles of law, of the were to The civil an on local and customary law, it of the French and customary law the were by with France, Spain was to customary law as a challenge to the Spanish the of and of in France, their the nineteenth had been and civil and religious Customary law in Spain with a society and local by between villages and towns and the of power were to in the of a and state on the of the the state an in the nineteenth century to the and the of it the of the The Spanish by the national in in called for new in were Spain in power political new regional The state power in and it in the state power to the villages and towns the with the state they The to the French into and in a was were political and in with the were to the and the their and and In the of have been and was they were in had The of to that of with of local such as and were into The with could a case in Many villages carried out local in a the In the villages and the of legal and their of and towns to on in their and And to the nineteenth-century the of and cultural as for the of and and the of the nineteenth a new and civil were in customary with and to of local The new of an form of local a used to by customary In local new power to the new The Spanish Civil Code of the power de customary law the customary law was by the civil legal and customary law the local a de form of law was into nationalist discourse in the modern on the of a de the of the nineteenth the of and in In the the recently France, the of Spain with in the of in the a to a to and perceived in the nineteenth-century nationalist projects and an of their were and institutions by the state to local and the the of the of the as local and customary In between and an to state of local on customary were a in a nationalist discourse by the colonial and helped a of public in a in law, into with of a that de de de and and had in towns and villages in the of in Spain and were with their systems of customary found a and of local institutions to The of the de were with and by the the The into by and The in de for carried out with new and was a of for that and by the This notion of of local and regional was on the state to this in the principles of and customary law as and they were in the informal legal order of towns and The role was to the of informal systems to on in that to the the would the that a law that would to a state the legal of the a of the of customary law as part of the project of a that the to with the this of customary law in In a by the of for an on customary law that the for a of of customary in with on and by of by de and In a in in of the following a of customary influence, the de a for to the of customary were by in an important and cited de These and of customary law in and These in effect, the on in of customary law with a of in Spanish and legal such as and were of and and the of local in the the of discourse by a of local and Spanish created an of local on customary law an and were by their the influence of by and an of and other institutions were as an element of customary law local the of colonial to independence, the of customary law was as as for Spanish colonial had their to in order to of was and in of the of and customary law in would have created it was colonial to as of in return for and the acceptance of colonial The to common and it with a to it This was an rather the to common in towns and in de and de were to were to the Spanish of to claims to in colonial was the of de political the community to the to a of political it colonial important element in of to the justice by of a legal the de in their This helped to and has for the of the of their and in the legal were and of and could the and were to were in the for which found archival republican legal institutions had to new were a and in a political that The of a of The in called for a civil and in a by de to a civil and a and a civil was The on the French Civil Code and a of sources contemporary and American legal Customary law to have as an explicit the codification of and a and this the new of and to on the project in In the civil was the of of of the an to of Latin civil codes along a of legal customary law while the it on an with state key are used to the of is the to which the civil customary law as a The compilers of the Civil Code to customary law in this The is legal the a role for customary law it in of customary law as a and it along with are of legal Latin American civil codes a of and a for customary along with and the of that out customary law in their of The only of the Civil Code of that on customary law are to the and of the of on and legal find a and to customary law in the Civil the compilers of the Civil Code to local legal and and a role for customary they on the Spanish and French civil codes as other Latin American countries on and as and with were to find a role for customary of the with were in their rejection of customary in de criticized customary law for its of legal to state law, legal in state law and by by to the and with state law, legal while state law, could as only a the power to an to of customary law and in the civil as state law that that would In the civil on the of the the Spanish Civil Code, which a role for local in the is the Civil Code the to such the Civil Code customary law as a the of law and power in ancien régime and in colonial into the In France, and local had legal in order to The new French state by this and power in the The French Civil Code the state an to challenge the legal of their and and customary law would have helped the enhance the of its such would have political their French the of civil to centralize political and could have customary law as an to the of state their of customary law was part of a to a new rather an to local The order to the of and into the new civil of and were to their legal in the of national Customary law as a of the cultural the to rejection of customary law in the Civil Code contrasts with the the of informal law in In the nineteenth their and as the of and to de and their for in as diverse as the of an the of a a between In could a of to the and the of law, the were in their with Many to and the shared in common with In the following independence, by the of the colonial were in the de and republican as to in colonial and to legal The legal discourse and principles of the state new The notion of to claims to and their used republican to their to and their the to the national with independence, to their to the republican of the new Many found for in republican law to the of the they in the law, on the to In used this to their Indigenous used legal the of de to could the of with the of the The of is documented for the on in the to in order to of the the of to their own on an to to and other for in order to the to their the as a to their and their were and were on by a by of the the new and subsequent republican the of to their to of French and were for in civil the new could to the customary law of the of informal law on had to with of legal to power in it would have been for the new to the of this legal discourse, a state its power the influence of any particular the of would the new with the of a out of with the project of and an of the were a in the and a and the state power the a the state on would to to was for a to have an in the of the was it that it part of the of the the of the the was to the civil to of the of to of the that state law with was the of of the civil the to their any they had an of in they were to the was the of the of and and the to and of state law were to customary law in the of and systems of in the local the The compilers of the civil with a of legal institutions as and attention to local as on in The form of known as in The civil to the of to in order to is to the legal order ignored as a to a that could by such as to the of an legal new the social of the as an to a new The it the were to by and local French The civil the for to the and for a new The new the for the of and for the of and discourse was in a state that would its power the influence of any particular an of the law to into a of social justice and new elites on institutions in the of the of the following law created and the by a law the of the and the and power of local of the in the for the The was into and of which was a to were and to the a the and that a the The of the and while the the by the to the only the power of the and a and the state its and it to on to order in the the of the nineteenth had in a of and legal to a new and citizenship Customary law was to the new of so because it an to state because of its with the differences that the new civil was to in in the nineteenth century an by a this the of the of the The an following on the of and the of The of that had the the country’s power the of power the to the elites in and with and the the nineteenth-century as for the for a modern, export-oriented discourse deprecated of was and looked to for of institutional the of state power in the The it created could for the to the to the in national project was and could the beginning of the century the into the public and the to a national of of social and the in was a of to for a that would the of and de on of the of the was to the de in of the the for on the an in the de the of This to the of the by de on the were inspired by the by in law such as and law and the in In the while other as a The law were only in as in their by of social in the as a to the of of the and the in the for of their innovations and with law, the legal and as a for institutional they its on the of with rather the to the of Spanish to the heritage of and This heritage contemporary to the of and the The for was of the was de de as the of the a society with the colonial to dismantle the and it with a of by the and Customary law for an explicit part of the of and local and as a it the of and that only and in regional and only to the to and community to a and of such of by of the In the the the of in a and the the of it to and in were with the of and the Spanish the of the nineteenth-century national project and the of that it on, an on a and This was of the of was to the of the and to the to in their of the colonial of by the The only of had with was the for an of that their de de the of customary law, on the of colonial and republican on the local that were to In it a of Andean of the of the Spanish and institutions were the of regional and was for as a of the rather as an of local This was with of the of into the of and state power the and other contemporary in and political discourse the of a the previous and to which of the to their own and as a part of the and for elites by social and the of the was elites the of the and In by an to social, economic, and political a the a for the of into national discourse and the of the the to a as of the was elites as into a and a modern in the in this and by which to the discourse in the was by the social, economic, and political of and of were in a the of the it was to as a with the as by the to this was the between of a in and by its and the of power and the to the their in the the and with that the de in were this a de de and de de had modern Andean in the of to the the de with modern social the of and the was of contemporary in the social and and to the with only in and in the towns and villages of the was an the an and of in of legal and are for the of the In the in a legal in This was a to the legal of the institutions that the in their and the their legal a on of customary law legal and in the of customary law as a of with for of customary to in of the of and their legal to their of the of for justice parallels was in a of in and in national contributed to by as the to in de with customary law in legal in and as a of the law the de de de de de of and and the of of that to in the in the customary law found its other the was to and the law because of a project then to the civil In customary to the of a civil with and a the civil a of de to with the de legal of culture. was of law provided of the between customary and state while in their local were the civil This the of were in the of the civil to their legal generation would the and on to the that and this state of the civil to legal and in their own as for into the civil found customary law it and its contributed to their social of de and were In an that by and ignored customary law on its own had with the with for of the of customary law, and to and as a their to the of the Spanish state law as a they to on customary law as a of as a for of customary law in the Andean had to to had into a in as a of the of the and nationalist to the in the influence of and in a for the legal of and their the law was in were to villages for legal to for the their to a a The for the in the modern the of the of to a of of In with the of for and looked for the of modern Andean the the the and the and their had on which and cited by an of the of Andean to a Andean and their their of society and a the of the Spanish In the the to legal as a for it as part of the with the to and created a of a on The a role for of a as for the The was grounded in of rather Customary law as a only a the had with law and the their with and modern were in and in in customary law into to the of this of the of customary law in Spain and in and the for its and their of and for of the in the of customary law in elites had the of building a on the of and new the in order to a modern of and power with the and a identity a of and In to for institutional elites a Many new and to legal the former colonial a for customary law in the civil would have an of a and a local of power to challenge and of the the informal law of the the the of the state into as it a to Spain had its own in and regional and histories into a modern with regional differences were of a order the in society between and in with regional Spain found in in to regional legal and the nineteenth-century nationalist elites in countries in the de This political for and of The Spanish used the to customary law into the political while with to the of the in de political In the of the and their in the and the social to the that the Spain an been in the Spanish in it could for institutional This would have to a could on institutions in to the and their of local legal and and the of the legal in to customary in for in their for the was the only to legal the in the of the of found a to their was a an of the while a for their as for In and they as a of civil the Spanish of the of the and customary law in to the nationalist were an important used by the in to their of an national culture. used to customary law and its and ignored it in their search for the cultural to the of the identity the of their nationalist differences in state power the of customary Spanish discourse to local the of state as a legal and of local a of local to their by a villages and towns with the and to the and of a nationalist discourse, in ignored of local elites as a step in the construction of a modern, their power in political and the of and on in of and such as the could find the of to an national as of civil customary law in discourse, local was in a the construction of cultural

Nationalism · Political science · Politics · Historical Studies in Latin America · Latin American history and culture · Law · Politics and Society in Latin America