Law and Society in Latin America since 1800
- LAST REVIEWED: 05 May 2017
- LAST MODIFIED: 27 November 2013
- DOI: 10.1093/obo/9780199766581-0095
- LAST REVIEWED: 05 May 2017
- LAST MODIFIED: 27 November 2013
- DOI: 10.1093/obo/9780199766581-0095
Complex intersections between legal codes, practices, and institutions, on one hand, and social structures, on the other, have played a central role throughout Latin American history. The modern history of law and society in most Latin American countries properly begins with the severing of colonial ties with Spain in the early 19th century and the subsequent introduction of new constitutions and legal codes in the decades that followed. Even countries such as Cuba and Brazil with different historical trajectories took steps to modernize their laws and legal institutions during this period. From the beginning, legal scholars in Latin America have devoted considerable time and energy to reconstructing and analyzing the laborious, convoluted efforts made in each country to reconcile the colonial legal legacy with new ideas about the role of laws and legal institutions in the governance of modern societies. Written for the most part by lawyers and judges rather than by professional historians, these works concern themselves almost exclusively with legal developments within their respective countries (rather than across the region) and generally pay scant attention to the larger historical frames in which these developments occurred. Despite their limitations, many of these local legal histories are foundational works of great value, and scholars would be foolish to overlook them. Still they are often hard to find outside their countries of origin (although more recent articles are sometimes accessible online); for that reason and in the interest of space, only a few of these country-specific “traditional” legal histories appear in this article. In terms of historical scholarship, the turning point in the history of the intersections between law and society in modern Latin America was the mid-1990s. During this period, scholars influenced by recent developments in social and cultural history began to ask new questions of historical sources, especially court records, which had been largely overlooked by traditional legal historians, and to engage with new theoretical approaches, especially philosopher-historian Michel Foucault’s insights into the linkages between knowledge and power. This so-called “new legal history” of Latin America has been especially prominent in two of the fields of inquiry included in this article: Gender, Sexuality, and the Family and Crime and Punishment. In contrast, scholars working in the other five fields—constitutions and codes, Legal Institutions, Indigenous Rights, environmental regulation, and International Law—generally engage with the more conventional research questions and theoretical frameworks of legal historians, economic historians, political historians, and (for more recent periods) political scientists.
Historical overviews of modern Latin American laws and legal institutions typically take a “traditional” approach to legal history. Most are written by legal historians and political scientists rather than by social or cultural historians. Although attentive to the larger political, economic, social, and cultural forces that shape Latin American laws and institutions, these authors focus mostly on the influence of ideas and politics on legal systems and the institutions and practices that emerge as a result. Benton 2002 analyzes legal regimes in world history, including Latin America. Golbert and Nun 1982, Mirow 2004, and Snyder 1985 provide broad-based historical surveys of the major epochs in Latin American legal history. Dezalay and Garth 2002a, Dezalay and Garth 2002b, and Mendéz, et al. 1999 specifically deal with late-20th-century legal reforms.
Benton, Lauren A. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge, UK: Cambridge University Press, 2002.
Analyzes the “legal pluralism” produced by colonial regimes as colonizers adjusted legal systems to suit local circumstances, including efforts by the colonized to resist the imposition of foreign laws and institutions. Provides background on Latin American colonial legal regimes and comparative case studies from British Africa and Australia. Chapters on the Spanish colonial borderlands (pp. 31–79) and mid-19th-century Uruguay (pp. 210–252) are of special interest to Latin Americanists. Helpful bibliography.
Dezalay, Yves, and Bryant G. Garth, eds. Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy. Ann Arbor: University of Michigan Press, 2002a.
Essays on neoliberal legal reforms around the world, including chapters on Latin America, Mexico, and Argentina. The comparative approach would help Latin Americanists put their work in a global context. The chapter on Latin America (pp. 139–161), coauthored by historian Jeremy Adelman, provides an excellent summary of the history of legal reform—especially liberal initiatives to institute rule of law—in the region.
Dezalay, Yves, and Bryant G. Garth. The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago: University of Chicago Press, 2002b.
Penetrating critique of the neoliberal legal reform projects in Latin America that began in the 1960s and 1970s. Organized by themes, the study draws on the comparative histories of Argentina, Brazil, Chile, and Mexico. Strong on the political debates around reform and the institutional developments that emerged from those debates. Includes extensive interviews with participants from two sets of political actors—legal technocrats and old-school legal policymakers—whose interests often conflicted.
Golbert, Albert S., and Yenny Nun. Latin American Laws and Institutions. New York: Praeger, 1982.
Provides a good overview of Latin American laws and institutions, including their historical development, through 1980. Strong on legal procedures throughout Latin America and hemispheric legal disputes. A good place to start for researchers interested in the workings of Latin American law and legal institutions. Includes excerpts from legal documents and extensive citations.
Mendéz, Juan E., Guillermo O’Donnell, and Paulo Sérgio Pinheiro, eds. The (Un)Rule of Law and the Underprivileged in Latin America. Notre Dame, IN: University of Notre Dame Press, 1999.
Essays by prominent political scientists on Latin American law and legal institutions, especially their role in addressing and often reinforcing social inequality, since the so-called “democratic transition” that began in the 1980s. Divided into thematic sections on lawless violence, attempts to overcome discrimination, and access to justice. All essays are comparative and deal with the region as a whole. Strong on the impact of legal institutions, especially the police and courts, on marginalized populations.
Mirow, Matthew C. Latin American Law: A History of Private Law and Institutions in Spanish America. Austin: University of Texas Press, 2004.
Surveys Spanish-American private law and institutions over three eras: the colonial period, the 19th century, and the 20th century. Each section includes short parallel chapters on structures and courts, legal education and lawyers, sources, personal status, land and inheritance, and commercial law along with period-specific historical overviews and thematic chapters. Includes an up-to-date bibliography. Sensible starting point and invaluable resource for researchers, teachers, and students interested in the history of Latin American law.
Snyder, Frederick E., ed. Latin American Society and Legal Culture. Westport, CT: Greenwood, 1985.
A bibliography of Spanish- and English-language sources on Latin American law from the pre-Columbian era into the 1980s. Good on the role of ideology, politics, and economics in shaping the law and legal institutions, especially over the course of the 20th century. Includes extensive citations for transnational and international issues in Latin American law.
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