Rechtsgeschichte - Legal History

Introduction

Don Francisco Ubaque’s Spanish associates marveled at his appearance. In testimony collected for an información de oficio, the cream of Spanish colonial society (encomenderos, scribes, administrators, and high-ranking clerics from the cathedral) attested that don Francisco Ubaque »even though an Indian, is a well-refined man whose behavior is that of a Christian and a Spaniard, with great policía,« which they compared to that of a Spanish caballero, since he dressed in Spanish attire, carried a Spanish sword, and also rode a horse. They lauded his orthodox Catholicism, his hatred of idolatry, and the fact that he willingly carried a torch in the Corpus Christi procession. They especially celebrated the fact that he emulated the »good customs of Spaniards« in his public behaviors and personal interactions.¹ On the surface, these remarks tell the story of the mimesis of the colonial encounter.² But underneath the veneer of flattery and mirror-gazing, these comments would act to introduce a contentious legal issue that penetrated to the heart of the colonial legal order.

The above-cited testimony formed part of an information-gathering process that had started in 1578, aimed at changing inheritance law for the inhabitants of indigenous settlements of the northern Andes, in a region of the Spanish Empire known as the New Kingdom of Granada (roughly coterminous with modern Colombia). The instigator of the process was the attorney Juan de Aldaz, representative of don Francisco, the cacique of the sizeable and politically-important settlement of Ubaque. Aldaz’s specific request included alterations to indigenous inheritance law that would allow the cacique’s son to inherit leadership responsibility for Ubaque (rather than a nephew or, in the absence thereof, a successor chosen by village notables). As such, the request threatened to overturn a longstanding custom in the native community that pre-dated Spanish conquest. Rather than effecting change within his community with the blessing of its members, don Francisco had chosen to appeal to the Crown’s administrators to force the change. But as he did, he ran into obstacles. And, as it turned out, he was not the only indigenous leader making such a proposal at this time. More on that in a moment.

In the coming pages, I look to conflict over indigenous inheritance law in one small corner of the 16^th-century empire to open a window onto Spanish justice more generally. After briefly considering the local ramifications of this dispute, I turn to the wider Hispanic world in surrounding centuries to understand how these events in the colonies reflect long-term legal traditions. I am specifically interested in the mechanisms that placed custom – unwritten norms – at the center of early modern Spanish legal theory, and made the Spanish monarchy one especially adapted to incorporating diverse social elements. By focusing on custom and its relationship to the maintenance of diversity over such a long period, I am consciously thinking about the legacy of Iberian convivencia both within and outside of its traditional medieval frame. The 16^th century in the Spanish Empire is typically seen as a period of rupture, during which | the formerly tolerant land of three religions³ transformed under the punishing watch of the Inquisition, as Judaism and Islam disappeared from the Iberian map for a period of centuries. It is uncommon, for instance, to include post-conquest society in the Americas – characterized in the historiography as a product of Christian zealotry – within the framework of convivencia. Yet on both sides of the Atlantic, amidst all the narratives about the extinguishment of alterity, the persecution (and even expulsion) of Jews, Muslims, and Moriscos – there still existed visible spaces of autonomy in the very structure of the Spanish monarchy that attested to a value on lived diversity, however paradoxical such a claim might sound.

The term convivencia, first employed in the historiography as a surreptitious way to critique the unwavering cultural essentialism of the Franco dictatorship in Spain, is now widely employed in the political arena (especially in the Spanish-speaking world) to communicate the social ideal of tolerant coexistence.⁴ As an example, in its Nuevo código nacional de policía y convivencia (2016), the Republic of Colombia announced that »convivencia is understood as the peaceful, respectful, and harmonious interaction between persons, in reference to belongings and the environment, within the frame of the rule of law.« In the six articles of Title 1, Chapter 2, the code links the achievement of convivencia to the exercise of rights and liberties, the respect and acceptance of differences, the peaceful resolution of public disputes, and the general support for values that in the French Declaration of the Rights of Man might have been framed as liberté and fraternité.⁵ Taking this concept – essentially a modern value whose current interpretation is largely the result of social changes from the second half of the 20^th century onward – as a framework for analyzing the past is fraught with pitfalls. I must make clear from the outset that this article does not intend to unearth the roots of modern toleration in the late medieval/early modern Iberian World. Instead, through its review of the historiography, it seeks to understand the aims and the limits of a Castilian legal system, which in its own way also sought to secure the »harmonious interaction between persons … within the frame of the rule of law.«

Though for many decades Spain was vaunted as a special historical arena in which legal and cultural pluralism thrived,⁶ legal historical studies have indicated similar complexity that was common across Europe.⁷ Nevertheless, Jewish communities were perhaps more widely dispersed throughout Spain than they were elsewhere in Europe and Islamic communities lived in a close proximity to Christians that was unthinkable in the rest of the continent. This proximity led to the consolidation of norms and social practices meant to facilitate some modicum of intergroup tolerance. Scholars of colonial Latin America have long looked to this medieval background for interpretative clues to use for understanding the construction of the New World legal order, in which a colorful and diverse mosaic of peoples were incorporated into the Christian, Spanish legal system.⁸ It is my hope that by identifying the methodologies and topics of study in historiographies that often remain separate (late medieval/early modern Spain, on one hand, and colonial Latin America, on the other), I will be able to contribute to the cross-fertilization of ideas and be able to signal some promising avenues for integrated or comparative study.⁹ In doing so, I am following the lead of other scholars who have proposed and conducted trans-Atlantic comparative study on related legal historical themes.¹⁰

At its root, this essay attempts to see society in the monarchy of Castile (and its ever-growing territories) through the lens of jurisdiction. Late- | medieval Castile, a kingdom that stretched from the Mediterranean to the Bay of Biscay, geographically and demographically dominated the Iberian Peninsula. Nevertheless, Castile maintained a different legal system than did the peninsula’s other kingdoms, Aragón and Portugal, even following the union of Aragón and Castile under Isabel and Ferdinand and despite the addition of Portugal between 1580 and 1640. For the sake of simplicity, this article focuses on Castile to the exclusion of the other two kingdoms. The territories of the Indies, since they were incorporated into the monarchy via conquest, remained subordinate components of the kingdom of Castile, even though there were repeated attempts to remodel them as kingdoms of their own, on par with the monarchy’s European constituent parts, throughout the 16^th and 17^th centuries.¹¹

Jurisdiction, as I will examine more at length later in the essay, refers to the ability to administer the law (literally in Latin to »say the law« – »ius dicere«).¹² Though we think of such legal power as residing with the monarch and his or her ministers, it was also inherent to numerous other bodies throughout the kingdom: the Church, municipalities, corporations such as guilds or confraternities, and, for limited times and with certain stipulations, religious minorities. Lauren Benton has accordingly defined it as »the exercise by sometimes vaguely defined legal authorities of the power to regulate and administer sanctions over particular actions or people, including groups defined by personal status, territorial boundaries, and corporate membership.«¹³ Both canon law and royal law theoretically stretched across the spaces of empire. At a local level, municipal ordinances complemented those norms. But what is sometimes lost from view is the immense determinative capacity of custom in the Castilian legal matrix. Custom represented more than a nebulous no-man’s land of legal action; in what would become the Spanish Empire, it was an esteemed and protected sphere of normativity. The centrality of custom in judicial decision-making virtually assured the protection of significant auto-determination at the local level. Thus, as I focus on newcomers and Others¹⁴ in the Castilian legal system, I reflect on the ways that the system provided for their self-governance according to patterns independent of and pre-existing their integration into the monarchy. This reflection on convivencia focuses on the late-medieval/early modern conception of »republics« – cultural communities oriented toward cohesive action preserving their common good – as the basic unit of study, and on custom (unwritten law) as the basic guarantor of their continuing self-determination.

Contesting Inheritance in the New Kingdom of Granada (ca. 1570–1590)

In the latter half of the 16^th century, roughly ten thousand Spaniards and a few thousand Africans lived in concentrated settlements throughout the New Kingdom of Granada, surrounded by somewhere between 200,000 and 500,000 indigenous inhabitants.¹⁵ While European settlers largely congregated in a few Spanish cities and towns (Santafé, Tunja, Vélez, Ibague …), it was an overwhelmingly indigenous space. And despite the fact that governance at the level of the pueblo had begun to take on some Spanish characteristics by the last quarter of the 16^th century, the actual framework of the imposed Spanish legal system was rather flimsy. The Spanish presence in indigenous pueblos was limited to a priest, who may or may not have resided there year-round, and a modest amount of non-indigenous through-traffic that increased only gradually with the establishment of Spanish farms (estancias) on their outskirts.

Within those highland Muisca towns of the New Kingdom in which don Francisco Ubaque moved, the pre-Hispanic exercise of authority appeared to have been relatively consistent from settlement to settlement. The highest level of authority had belonged to the usaque (cacique mayor), who governed an array of subordinates across multiple settlements. Local authority over any one particular community was exercised by the sihipkua (Castilianized as zipa, and translated into the nomenclature of Spanish law as cacique). Under | the sihipkua, a series of tybas (captains in Spanish parlance) were responsible for the management of a handful of matrilineal family units (gue). Despite the relatively structured appearance of these relationships, tybas were not entirely subordinate to the sihipkua above them, enjoying as they did the ability to uproot their own subjects and re-pledge them to another sihipkua.¹⁶

Political authority was generally inherited in this society, though Spanish administrators quickly discovered that indigenous forms of inheritance (as well as residence patterns) were different than their own. Lines of inheritance – most visibly of public authority – passed down through the maternal line, from uncle to nephew. In general, individuals were understood to belong to the political unit of their mother. Offspring would reside in the settlement of their fathers until their parents died, at which point they were expected to emigrate to live alongside their maternal uncles. Reflecting these dynamics, names of Muisca women contained two parts: one denoting the place of her birth, and the other a particle extracted from the name of her mother. This way, in the words of Santiago Muñoz, »the names of the mother condensed the social and political placement of the children, which did not necessarily coincide with their place of residence, and contained sufficient information to order society and to have a map of its political affiliations.«¹⁷

The Muisca expectation that the progeny would eventually make their way back to the settlement of their maternal uncles created problems in the eyes of 16^th-century Spanish colonists and administrators. The most famous cases involve two mestizo sons of Spaniards, don Alonso de Silva and don Diego de Torres. The two men had been raised in Spanish urban environments, in the company of their fathers. Torres had received an education from Dominicans in Tunja and Silva worked as the assistant to a royal scribe in Santafé (Bogotá). In fact, Silva aspired to become a scribe himself after obtaining royal dispensation for his illegitimate birth.¹⁸ At the same time, both men were also sons of indigenous noblewomen, the sisters of caciques, and, according to indigenous succession patterns, they were the clear inheritors of the mantle of authority. Theirs was a polygamous society, and noble bloodlines were traced along the female line. Indigenous leadership passed from the cacique/sihipkua to the eldest son of his eldest sister. In 1571, both don Alonso and don Diego were approached by principals from their mothers’ native communities, who affirmed that the two men were eligible according to these norms, and asked (independently one from the other) that each of the respective men be recognized as their cacique.¹⁹ Though their request existed in a gray area in Castilian law, Spanish authorities assented, and the men accepted their roles. When they almost immediately undertook an activist defense of native interests, however, legal challenges began to come at them from left and right.²⁰ Both Spanish landed interests and indigenous opponents tried to undermine the legal basis for their leadership. By 1574, that effort had successfully convinced the regional court (Real Audiencia) in Santafé, which then deprived don Alonso and don Diego of their positions of native authority until the Royal Council in Madrid had time to decide the case on appeal.²¹

Rather than focus on the variety of arguments that went into the case heard by the regional court, which are numerous and complex, I want to focus on just one – the issue of inheritance and succession. Spanish legal doctrine held that local use and custom should be respected, unless it clearly violated Christian principles or fell in direct contradiction to an express royal imperative. During the course of the litigation, don Alonso de Silva reminded the court of this principle.²² The opposing legal representative conceded the issue, and instead set out to throw into question whether don Alonso was actually the legitimate successor according to native custom, proposing alternative genealogies | that identified as rightful cacique his close relative don Martin or don Laureano, an obscure candidate from an obscure cacical line.²³ The outcome of don Diego’s defense turned on a similar issue. But as the members of the prosecution built their argument, bodies of law mingled. Unable to construct an airtight case (though they did create some doubt) that an alternate claimant to don Alonso’s cacicazgo was its rightful heir, they tried out a second argument. They claimed that because don Alonso was illegitimate in the Spanish world (true, though afterward legitimated)²⁴ and a bastard (possible, via circumstantial evidence) that he could not be considered a legitimate claimant to the indigenous office. Don Alonso countered that indigenous custom recognized nothing similar to Castilian legitimacy; caciques had multiple wives, and the bloodline, rather than a ceremony, legitimated an heir.²⁵

In the end, though the regional court decided there was sufficient evidence to disqualify both men from their offices – a burgeoning historiography has recognized it as a heavily politicized decision²⁶ – it recognized and upheld local custom’s value as law. Early modern Castilian legal decisions are notoriously sparse on rationale, preferring merely to affirm that justice has been provided without providing elaborate disquisitions explaining why and how.²⁷ In don Alonso’s lawsuit, we do not know which of the arguments swayed their opinion, but we do know that his kin Don Martin was eventually awarded the office of cacique.²⁸ When Don Diego de Torres, likewise, was deprived of his cacicazgo, it was placed in the custodianship of don Francisco, a first cousin who had an alternate legitimate claim according to indigenous succession.²⁹

When, beginning in 1578, don Francisco Ubaque lobbied the Crown to overturn indigenous norms on succession, he did so against this historical backdrop. While they were responsible for securing the recognition of royal judges of the validity of this element of customary law, the cases of don Alonso de Silva and don Diego de Torres also had been central elements in a period of intense political instability that ultimately led to a complete replacement of the five-member Audiencia court. It is not an exaggeration to say that the colony stood on the precipice of rebellion for the better part of a decade.³⁰ It was also a time of rapid cultural change, in which the process of indigenous Christianization finally started in earnest. Don Francisco’s entreaty should thus be seen as an opportunistic attempt to use the prejudices of the Spanish judiciary to effect a self-serving – because he had a son but no legitimate nephew – outcome. A handful of other caciques (interestingly including don Alonso de Silva) also made the same effort, all alleging that they did so because of their interest in further Christianizing the native community. They tended to argue that native communities would profit from Castilian (or in their words, ›Christian‹) succession, because it would assure that once leadership was Christianized, successive generations of leaders would also be Christian. This, of course, depended on an understanding in ius commune that progeny of Christians were, by definition, Christians.³¹ To continue with indigenous succession patterns was to leave open the door for unbaptized caciques to follow Christian ones. The monarchy showed some interest, but ultimately adhered to a long policy of respecting the validity of customary law for its subjects’ local self-governance.

Customs

Where did custom fit in the constellation of colonial law, and did its placement represent a transformation of medieval Iberian precedent, or a continuation? First off, only with the publication of the Recopilación de las leyes de Indias in 1680 did a unified body of law meant for application across the colonies appear. That text reserved a special place for indigenous custom:

»We order and command that the laws and good customs that the Indians formerly kept for their government and public order, and | their usos and costumbres observed and maintained ever since they have been Christians, and which do not contradict our sacred religion, nor the laws of this book, as well as those that they have newly made and formulated, be preserved and applied; and since it is necessary, through this mandate we approve and confirm that We may add whatever serves our interest, and that which acts in the service of the interests Our Lord God or our own, and the conservation and Christian policía of the natives of those provinces, without harming their achievements nor their good and just customs and statutes.«³²

This adaptation of a 1555 cédula sent by Charles V and its incorporation into the Recopilación, with the consequent generalization across the Indies, provided native norms with an additional level of legitimacy. But what kind of protections had indigenous custom enjoyed before 1680? Customary law – sometimes referred to in medieval and early modern sources as moral law (a term whose etymology traces back to use by Isidore of Seville in the 7^th century) – describes norms elaborated on the basis of customs, habits, and practices.³³ For all the pretentions of royal law, local custom was one of the most important sources that Spanish magistrates drew upon as they made decisions and was a tremendously important source of law in Spain’s colonies. For determinations in court, there were two types of custom that magistrates took into account. The first emerged from Spanish criollo contexts and included the corpus of established practices that New World authorities had adapted for emergency circumstances and which had proven durable over a period of years, and had continued in colonial use without explicit contradiction by the monarch.³⁴ This evolution of practice into law constituted what some might label as »the workings of silent democracy across time.«³⁵

As kingdoms integrated into the territories of the Castilian Crown, the Indies were subject to Castilian law.³⁶ In practice, this meant that their existence was regulated by the foundational texts of royal law, which dated in some cases back to the 13^th century.³⁷ In 1567, the monarchy published the Recopilación de las leyes de estos reynos. Though the Crown had intended to simplify and concentrate preceding Castilian law with its publication, it effectively became one more set of norms upon which a jurist could draw.³⁸ The Recopilación de Castilla identified current and future royal ordenamientos and pragmáticas as sources of law of first order. It also authorized as supplementary law the Fuero Real (1255) and other municipal fueros to which the Crown had acceded in prior centuries, as long as they were not contradicted by the text of the Recopilación or canon law. In disputes that could not be settled through those channels, the Recopilación recognized the Siete Partidas (1265, of which Gregorio López published a definitive copy, with a gloss, in 1555).³⁹ In the end, the Siete Partidas proved to be a favored source for New World jurists.⁴⁰

And what was the Partidas’ stance on custom? The Partidas clearly defined custom as unwritten law, in use for extended periods of time (I. 2. 4). There were guidelines for how custom could be introduced (I. 2. 3/5): 1) it should be the will of the people; 2) it should be confirmed by adjudication (backed up by at least two rulings); 3) it should be reasonable and should not contravene Natural Law or the law of the land; 4) it should exist with the consent of the lord; 5) it should have endured for a | period of 10–20 years. The Partidas furthermore established that customs of the people even had the power to override written laws, whenever that contradiction was met with tacit or explicit approval of the King (I. 2. 6.). Relevant to the 13^th-century political environment in Spain, the Partidas recognized that once custom lived long enough to be passed down between generations, and was codified, it became fuero (I. 2. 7.). On a theoretical level, therefore, custom need not be calcified and tethered to a timeless past in order to be valid.⁴¹ Instead, it was understood to change over time. Some temporal durability was required – at least ten years for issues of secular jurisdiction and forty for those of ecclesiastical jurisdiction.⁴² But jurists expected that human communities and their customs would adapt according to the times.

Francisco Cuena Boy’s examination of jurisprudence (doctrina) on the question of custom in the New World revealed that there was no major New World innovation in custom’s role within the frame of legal determination from the viewpoint of Roman Law. When tribunals sought to determine the validity of a custom, Cuena Boy suggests prior judicial determinations were important in establishing repeated use, as was the survey or inquiry method, whereby elders and authorities within the native community were interrogated about such norms. Witness testimony could be used to establish through extrajudicial acts a certain custom’s continuing validity. The one issue that remained somewhat contentious was how many judicial decisions reflecting use would be sufficient to establish custom. Gregorio López, in his famed Gloss of the Partidas (1555), sought to rationalize the fact that the text of the Partidas only required two findings, when the majority of doctrinal texts he reviewed insisted on 30 or more. López reconciled the contradiction by asserting that two decisions was sufficient precedent if accompanied by two other requisites, namely the passage of ten years, and the general knowledge and acceptance of the populace.⁴³

Under the schema provided by the Partidas (and after a period of equivocation), the Crown recognized the framework by which norms stemming from indigenous self-rule would be recognized when they ended up in Castilian courts. That was the gist of a royal cédula issued in 1530 for New Spain.⁴⁴ This cédula in turn led to the publication of a set of capítulos de corregidores (ordinances for chief civil magistrates) that ordered that »good uses and customs« of the Indians be respected as long as they were not contrary to the Christian religion. Subsequently, the 1542 New Laws instructed its New World Audiencias to handle all legal issues involving Indians summarily, and to issue decisions based on indigenous uses and customs (chapter 20).⁴⁵ In 1552, Bartolomé de Las Casas in the face of a mounting counterargument reiterated the contention, stressing that the Crown was obligated by divine law to recognize the normative value of native customs.⁴⁶ The famous cédula that a century later was integrated into the Recopilación (2.1.4) soon followed, on 6 August 1555. In case there was any doubt, the Crown repeated its stance in another royal cédula dated 23 September 1580.⁴⁷ Caroline Cunill has recently confirmed that following the 1573 publication of the »Ordinances for the Formation of the Description of the Indies« royal administrators had been admonished consistently to be aware of the »customs and traditions in terms of justice that the Indians had prior to the Spanish conquest …« because the Crown intended that they »continue to be governed thereby.«⁴⁸

This approach allowed Indies government to function without the need to legislate on a multitude of quotidian issues, big and small, for which local societies had already developed solutions.⁴⁹ A number of scholars have foregrounded the interaction between indigenous custom and the Spanish legal system, both for the period immediately | after the conquest,⁵⁰ and for a later period as the distinct systems became more closely enmeshed.⁵¹ Meanwhile, in the face of a seemingly endless stream of counterarguments stemming from local issues, doctrinal sources continued to reaffirm the value of respecting indigenous customs. New World Jurists such as Polo Ondegardo,⁵² Juan de Matienzo,⁵³ and Alonso de Zorita⁵⁴ very actively advocated the explicit adoption of indigenous legal categories within the Spanish legal order. Meanwhile, critical doctrinal sources, such as Juan Solórzano y Pereira’s Política Indiana (1648)⁵⁵ and Gaspar de Villaroel’s Gobierno eclesiástico-pacífico y unión de los dos cuchillos Pontificio, y regio (1656– 1657) emphasized the magistrate’s duty to take indigenous custom into account when making decisions.⁵⁶ The above-mentioned authors comprise a portion of a whole body of New World jurisprudence, explored by Victor Tau Anzoátegui, that established the general validity of custom in the Indies – not just indigenous consuetudo, but also criollo norms.⁵⁷

Though it is tempting to consider the colonial question in a vacuum, custom remained a central component of the legal system in Iberia, too.⁵⁸ Throughout the empire, law during this period remained overwhelmingly local.⁵⁹ Paola Miceli has demonstrated how the conception of custom as a distinct but parallel source of Law entered into Castilian royal legislation during the medieval period from the corpus iuris civilis through the influence of the ius commune.⁶⁰ Through much of the medieval period, custom was the heart and soul of Castilian law. Some of it got immortalized in fueros when the Crown acknowledged the validity of local custom, converting it into legislation in the process. Even as royal law became dominant in 16^th-century Spain, custom remained a crucial tool at the disposal of magistrates as they interpreted jurisprudence to apply to the lawsuits that passed through their salas.⁶¹ The noted jurist and corregidor of Soria and Guadalajara, Jerónimo Castillo de Bobadilla, in his widely-read and cited Política para corregidores y señores de vasallos (1597) proclaimed »And just as judges are obligated to know the laws, and to rule according to them, they are also obligated to know the notorious and public customs of the city and province that they govern, and judge by them [as well].«⁶² Accordingly, the Jesuit Francisco Suárez’s influential treatment of the subject (book VII) within his ten-part study of law, originally published in 1612, reached a wide audience and remained among the most important early modern jurisprudence.⁶³ When thinking about custom, these authors focused not necessarily religious or ethnic minority communities, but local particularism more generally. All of this together assured that custom, even in disputes among Iberian Christians, would play a central role in dispute resolution.⁶⁴

Christian rulers’ evaluation of the validity of the customs of the kingdoms’ Jewish and Islamic subjects, and their convert descendants, has its own nuanced chronology. For several centuries, though a Christian monarch ruled over Castile, semi-autonomous Islamic communities continued to live alongside the greater Christian community. These Hispanic Muslims adhered to the Maliki School of Islamic Law.⁶⁵ At the local level alfaquíes served as the ulema (religious authorities),⁶⁶ who | oversaw the Islamic legal tradition as part of a greater umma that stretched across the Islamic world.⁶⁷ Following the 1085 fall of Toledo to Christian conquerors, members of these Muslim communities had had to make the hard decision whether to stay and become subjects of a Christian ruler or to emigrate.⁶⁸ Those who decided to stay became Mudéjars, a minority whose rights to adjudicate disputes fully between members of its own community was upheld for centuries.⁶⁹ Iberian Christian monarchs offered them communal and judicial autonomy as part of a quid pro quo predicated on the Mudéjars’ oaths of loyalty.⁷⁰

In 1412, however, King Juan II’s regent announced that Muslim and Jewish aljamas would be formally deprived of their ability to serve as proprietary courts of first instance. Instead, all suits would thereafter be judged in Christian courts by Christian judges. The new Royal Law did, nevertheless, establish the validity of Islamic and Jewish law as »customs and ordinances« for the adjudication of civil suits within Christian courts of Castile.⁷¹ Romance language translations and compilations of the basic precepts of Islamic law – the Llibre de la çuna e xara and the Breviaro Sunni – were created in the 14^th and 15^th centuries as tools for Christian magistrates tasked with deciding disputes between Muslims.⁷²

Some limited independent Islamic and Jewish jurisdiction seems to have survived during this period, despite royal pretensions. In practice, the legal reform depriving Islamic and Jewish courts of authority seems to have been unequally applied.⁷³ The prohibition was thus repeated again in Diaz de Montalvo’s 1484 Recopilación⁷⁴ and with the impulse of the 1492 expulsion of the Jews would have taken on definitive form, had the monarchy not extended to its new subjects in Granada the right to adjudicate their own cases within the Muslim community according to the »xara e sunna.«⁷⁵ Of course, when the monarchy completed the suppression of the first rebellion of the Alpujarras (1499–1500) by forcing the conversion first of all of Granada’s Muslims,⁷⁶ and then of all Muslims in Castile, the point remained moot. By 1502, Islamic law had ceased to be a valid source of normativity in Castilian courts (though it remained valid in the Kingdom of Aragón until 1526).⁷⁷ The 1412 division of Jewish and Islamic norms into ›customs‹, on one hand, and ›ordinances‹, on the other, seemed to suggest that Christian authorities recognized the determinative capacity of both, separately. The issue of the continuing normative validity of ›customs‹ would become an explosive issue in the 1560s.⁷⁸

Even though the monarchy successfully replaced Jewish and Islamic autonomous jurisdiction with its own, it still had another competitor – seigneurial jurisdiction. Carlos Garriga has traced how the hierarchy between tribunals developed in the late medieval period. Effectively, the Ordenamiento de Alcalá (1348) had identified the monarch as the mayoría de justicia – that is to say, the supreme jurisdiction and final instance of appeal. The concept of a hierarchy of appeals had been imported into secular justice from ecclesiastical circles, where it had first appeared. Garriga argues that the emergence of an appeals process by the end of the 13^th century was an important device for integrating plural political spaces under the power | of a supreme instance. Between 1348 and 1371, the political logic of the kingdom underwent a transition, transforming from feudal vassalage to the incorporation of natural subjects in a corporate political space defined by the head and body analogy, with the King as head and supreme. Until 1371, justice had been dispensed by the monarch in royal hearings (»audiencias públicas del rey«). In that year, the monarchy created an Audiencia court to be staffed by 7–8 judges (oidores), who in legal matters served as functional alter egos of the monarch. Nevertheless, due to significant pushback from the nobility – reluctant to cede appellate power to the King, in diminishment of their own – the Audiencias would not be fully functional until the advent of the Catholic monarchs, Isabel and Ferdinand, a century later. The 1390 Law of Guadalajara was crucial in extracting the minimum compromise in order to ensure that the hierarchy continued to be observed, at the very least in practice. In that law, the monarchy acknowledged the right (ius cognoscendi de causis appellationum) of magistrates of territorial lords to serve as the first court of appeals for litigation that had been opened on their lands.⁷⁹ The Guadalajara legislation formalized the hierarchy between local magistrates (alcaldes ordinarios), superior magistrates (alcaldes mayores and/or corregidores), territorial nobility (señores), and the tribunals of the monarch. In the 16^th century, seigneurial tribunals’ role as courts of second instance – coupled with lords’ creative maneuvers to protect their autonomy within their territorial borders⁸⁰ – created opportunities for noble jurisdictions to serve as safe-havens for persecuted minorities.⁸¹

The Crown’s desire to create a hierarchically-integrated set of jurisdictions in the Americas, with its own magistrates as ultimate arbiters, provided the motivation for the many of the conflicts that characterized the 16^th century. Prime among these was the refusal to grant temporal jurisdiction (señorío) to encomenderos, granting them only the right to collect tribute in return for their obligations to defend the land and offer Christian doctrina.⁸² There, as in Spain, the worry circulated that encomenderos were attempting to arrogate jurisdiction for themselves. Magistrates of the king’s Audiencias complained about encomenderos who tolerated behavior that royal law forbade.⁸³ The anxiety about the Crown’s potential loss of effective jurisdiction is what ultimately torpedoed the encomenderos’ appeal for perpetual encomienda grants in Peru.⁸⁴

Justice and Jurisdiction

The concept of Iurisdictio both designated and defined the role of public power in late medieval and early modern society. Iurisdictio expressed the authority and the obligation both to articulate Law (ius) and to ensure Justice (aequitas).⁸⁵ In this late medieval/early modern world, it was understood that monarchs did something akin to channeling the law, rather than creating it; iurisdictio – literally »saying the law« – was declarative, not constitutive. The iurisdictio that rulers exercised did not so much create a legal order, as declare recognition of an already existing order that they promised to protect. Their job was to be respectful readers of nature, interpreting its intention for the harmonious custodianship of society as a whole.⁸⁶ Historians have given a name – cultura jurisdiccional (»jurisdictional culture«) – to the legal order that was widely dominant between the late medieval period and the end of the 18^th century. Its undergirding concepts were different enough from our own that they created distinct understandings | about the obligations of magistrates. First of all, the understanding that social order was part of the texture of the universe tended to mute the sense of an individual’s voluntarity or will. Second, a ›corporative‹ model of society valued the community over the individual. Drawing on medieval analogies, the Christian community was considered the »corpus mysticum ecclesiae« (mystical body of the Church) or »corpus reipublicae mysticum« (the body of the mystical republic).⁸⁷ The body analogy allowed theorists to simultaneously talk about society as a unified whole while also explaining away differences between unequal parts. This model of coexisting parts could equally be used to explain unity, integration, and hierarchy between families, cities, and kingdoms. They united all of the elements into a harmonious whole governed by an ordo universal. This society was built on a religious foundation that worked both as social discipline and discourse. Its concomitant impact on the legal system led to intense casuistry⁸⁸ that emphasized reasoning against contradiction and according to tradition. In this society, power did not create or constitute, but rather conserved and guaranteed social equilibrium, delivering to each »what he deserved.« This philosophy, inspired by an incorporation of Aristotelian thought into Christian theology, re-conceived Christian society as a unitary body, governed by one universal law. The core values of the cultura jurisdiccional thus simultaneously recognized diversity and inequality, all while assuming that they were part of an inherent order of things and that it was the monarch’s job to safeguard that order. The imagery provided by the body analogy served to demonstrate the dominant schema of unity, integration, and hierarchy that sustained jurisdictional culture – a schema that would be reflected throughout society in families, cities, kingdoms, and (later) the empire itself.⁸⁹ Francisco de Vitoria articulated such a connection in his relección of De potestate civile:

»Just as the human body cannot be preserved as a whole if there is no rationalizing force organizing the articulation of its members, each assisting the other and, above all, assisting the entire human organism, so too would result in the city if each merely tended to his own concerns and everyone ignored the common good.«⁹⁰

Republics & Customary Law

The conception of a legal system constructed on the metaphor of the body made room for differentiated constituent parts. This metaphor also facilitated the incorporation into the legal system of subject communities that were at once distinguishable in character and integrated into the whole. How exactly justice worked in those communities continues to be a matter of ongoing and fruitful debate. One of the questions that arises across historiographies (medieval, early modern, and colonial) is exactly what kinds of norms dominated at a local level. Did those communities labeled as infidels (Muslims, Jews, and unbaptized Indians) live in legally pure spaces, where religious or customary law dominated? Did the groups that the Catholic Church occasionally accused of being heretics (conversos, moriscos) live in communities fully penetrated by Castilian ius commune? Or did other sources of normativity compete with royal and ecclesiastical law to shape the juridical landscape of the different corners of empire?

New Avenues for Study

As we dive deeper into the local in the Spanish Empire, what methodologies can we benefit from? One fruitful opportunity is offered by the concept of interlegality. André Hoekema, the most insistent proponent of interlegality as an analytical tool, defines it as »a process of adoption of elements of a dominant legal order … and of the frameworks of meaning that constitute these orders, into the practices of a local legal order and/or vice versa.« He further acknowledges that the process also carries an implied result – the hybridization of coexisting ›legal orders‹.¹⁹²

In this article’s opening vignette, I explored how Spanish judges determined that indigenous inheritance custom was valid and, in fact, trumped existing Castilian inheritance law, insofar as that law was to be applied to the native community. This was an example of a structural interlegality particular to the Castilian legal system. Often times, we see indigenous norms (that did not violate precepts of Christianity, always a requirement) explicitly re-appropriated within Spanish statutes. For instance, in the 1570s Viceroy Francisco de Toledo of Peru reinstated an Inca law that Andean highlanders could not be forced into mita rotations in the lowlands for more than 24 days, and encouraged another norm that mandated that caciques host public meals for the poor.¹⁹³

But indigenous systems might also take on features of the Castilian legal culture surrounding them. This was the case roughly forty years later, when in 1617 don Pedro, cacique of the pueblo of Cheva in the New Kingdom of Granada made a last will and testament with a Spanish notary. In that document, don Pedro identified his nephew don Juan, the four year-old son of his sister doña Juana, as his rightful heir. And don Pedro used the testament to assure that goods belonging to the cacicazgo (chieftainship) – a farm, livestock, or | chards, and blanket stockpiles (a common tributary item and basic unit of exchange) – stayed with the regents (doña Juana and an unnamed gobernador) until the nephew came of age and assumed the cacicazgo. Like him, the incoming cacique would be required to use these common goods to pay the tribute obligations of the poor and elderly in the pueblo.¹⁹⁴ Not only does this will illustrate the continuing validity and observation of indigenous custom in the inheritance of authority, it also highlights the flow of interlegality in the other direction. In this case, a foreign legal form (the will) could become a legitimate instrument facilitating smooth transitions within the pueblo according to customary law. The interpenetration of semi-autonomous bodies of norms proved crucial in the elaboration of local frameworks of meaning both flexible and simultaneously cohesive enough with central legal tenets to sustain a durable political system.

The best evidence of interlegality is likely to come from cabildo records, and specifically the decisions of judges of first instance, the alcaldes ordinarios. Unfortunately few indigenous cabildo records from the early colonial Andes – either from Perú or the New Kingdom of Granada, from which the above examples came – seem to have survived. However, a recent analysis of one of these scant records shows indigenous judges making rulings based on Castilian law but with distinct Andean features.¹⁹⁵ The work of Puente Luna and Honores highlights indigenous actors working within the structure of Spanish justice to provide decisions that sampled liberally from both Iberian and native traditions. In such interactions between two legal systems, Hoekema’s framework for examining interlegality encourages attentiveness to the relationship between dominant and local legal order. This leads me to an observation. Concerning the setting of early 17^th-century Andes, which – I ask – was the dominant legal order? Our modern familiarity with the written Castilian law might lead us to make rash assumptions. For if we look at demographics at the end of the 16^th century in the territories the Habsburg Crown claimed in Peru, there were only tens of thousands of Europeans, but millions of native Andeans. Spaniards claimed hegemony; but given the demographic disparity, how seriously should those claims be taken, especially in this early period?

To be sure, there was great diversity in the indigenous community, constituting a patchwork of normative communities. But sometimes, frankly, our reconstructions of the 16^th century reminds me of the old historian’s saw about the man who has lost his keys in the dark and goes out to look for them. When his friend, apprised of the situation, sees him very anxiously fumbling through the grass surrounding a lamppost, the friend inquires why he is so intent to search there, rather than looking through the surrounding field or the pathway that continues on into the distance. The anxious man responds, »Well, this is where the light is.«

This leads me to another avenue for future study, that of hidden jurisdictions. By this, I refer to normative spheres not recognized by the sovereign power but with capacity to direct the administration of justice on a local or regional level. To be relevant to this particular essay, they must reflect the norms of some republic, a community that imagines itself as a cohesive whole and whose members share common future objectives. In the early modern world of conquest, dislocation, and plural, contested space, the opportunities for such hidden jurisdictions are numerous. The case of Granada’s Moriscos makes clear that the structures of Mudéjar justice outlasted nominal conversion to Christianity and wholesale insertion into the Castilian ius commune. The War of the Alpujarras (1568–1570) in the kingdom of Granada was essentially a civil war started over the native community’s right to observe and to continue to apply a substrate of customary law. The same can be said of Spanish »extirpation of idolatry« campaigns in the Americas.¹⁹⁶ Almost every extirpation campaign revealed non-Christian beliefs, yes, but also parallel systems of authority and justice. The »customs and rites« that Spanish ecclesiastics endlessly harped on about were no less than the surface manifestations of competing legal systems. As just one example, Jorge Gamboa’s analysis of a trial in the New Kingdom of Granada during the last | quarter of the 16^th century, in which one faction in an indigenous pueblo was accused of idolatry and other sins, revealed definitely non-Christian practices for the coronation of authority and wholly proprietary mechanisms for pursuing damages in the case of wrongful death.¹⁹⁷ I suggest that we continue tugging at all the available strands, following hints of normative modeling through as many documentary types as possible – legal trials, notarial records, pragmatic books, chronicles – in order to better recognize the shape, reach, and unequal authority of early modern and colonial jurisdictions. Digging through the evidence of idolatry campaigns and similar legal trials – to be complemented by clues in last wills and testaments – we can see the outline of systems of justice that worked from different precepts and envisioned the transfer of authority in different ways.

These hidden jurisdictions become most legible to us when they begin to overlap with structures of Castilian authority. The New Philology school of research, by drawing upon indigenous language records, has often been able get the closest to indigenous actors working within the Spanish system but according to native structures of thought. Recent advances in the study of judicial linguistic translation – conducted with the Zapotec-language records of Villa Alta (New Spain) – have revealed how the Spanish justice system could be tuned to play in a very locally-relevant key.¹⁹⁸ As Spanish and indigenous systems of justice gradually developed symbiotic relationships, even hybrid ones, hidden jurisdictions had the tendency to come out into the open.

So-called functional communities also offer a privileged viewpoint for examining the workings of customary law in the Spanish Empire. According to Brian Tamanaha, functional normative systems are those that take shape »in the pursuit of a particular function, purpose or activity that goes beyond purely commercial pursuits … [which] possess some degree of autonomy and self-governance aimed at achieving the purpose for which they are constituted … and … interact with official legal systems at various junctures …«¹⁹⁹ Functional communities represent ›republics‹ in the most fundamental sense of the word – communities of people constituted through common interest and devoted to a »common good« (res publica). Educational communities, religious communities, and guilds provide the most numerous examples of such functional groups. How might one examine these as legal-historical objects? One study of the famed University of Salamanca examined the jurisdiction exercised by the maestrescuela of that institution, scrutinizing the University’s distinctive authority in relation to royal and papal jurisdiction. It focused on students and their nuclear family members, as well as their employees and servants, who enjoyed the university fuero, as did university officials, members of any affiliated colegios, convents, or monasteries, and all employees of the University’s independent tribunal.²⁰⁰

Universities in general, and the University of Salamanca in particular, were elite institutions, but a great majority of the functional communities that coalesced and exercised their own (limited) jurisdiction were not. Confraternities did not enjoy a right to their own fuero in the way that universities did, but they did exert normative pressure and condition the behavior of their individual members. In theory, confraternities were pious and charitable institutions that organized public events to advertise their social functions. In practice, though, they often took on the character of extralegal normative bodies for minority communities within Christian society. Such a reality was not restricted to the Americas. Late medieval Toledo was home to some of the most important political confrontations between Old Christians and conversos throughout the 15^th century. In 1481, the archbishop of Toledo devoted a synod statute to decrying the creation of ethnically-specific confraternities, recognizing by so doing that these brotherhoods were creating normative communities that competed with secular and ecclesiastical jurisdiction.²⁰¹ One intriguing example comes from an Islamic brotherhood in that city, | from a document rescued from obscurity by Ana Echevarría. Taken from Toledo in the early 15^th century, the eleven-folio document written in Arabic names members of a Mudéjar ›congregation‹ in that city. Because of vagaries of translation, the community to which it refers could either be a confraternity or an aljama, but in either case Echevarría demonstrates that it is a normative document that details not only the financing, but also the regulation of a voluntary community of Mudéjars.²⁰²

Often an »ethnic refuge« in colonial Spanish America,²⁰³ confraternities provided structure for displaced communities by offering them formal organizations with statutes and regulations, through which they were able to reconstruct normative communities.²⁰⁴ In her survey of early colonial African confraternities in Lima, Karen Graubart has tentatively suggested that the leadership of black colonial confraternities mimicked the office of alcalde de los negros that had been created in 15^th-century Seville to oversee that city’s African community.²⁰⁵ Teresa Vergara has argued convincingly that in 17^th-century Lima, the indigenous shoemakers of the city combatted their exclusion from the official shoemakers’ union (gremio) by founding a confraternity that served as an unofficial guild for their own practice of the profession.²⁰⁶ Serge Gruzinski has suggested that in Oaxaca, certain confraternities eventually transformed into pueblos de indios with their own alcaldes and regidores.²⁰⁷ Nicole von Germeten has analyzed Black and Mulatto confraternity constitutions in Veracruz, demonstrating how their norms regulated both financial concerns and behavior of members.²⁰⁸ In her analysis of an alleged uprising in 1612 New Spain, María Elena Martínez suggested that Black confraternities in the city of Mexico had a political function and that their hierarchical structure was the intended basis for a new administration in the case of a successful rebellion.²⁰⁹ Though outside the temporal boundary of this study, Matt Childs’s work on late-colonial Afro-Cuban cabildos is also worth noting. Building off of a burgeoning historiography, he has shown that ethnically-specific cabildos (Kongo, Lucumi, Carabali, Mina, Mandinga, etc.) developed out of the Spanish institution of the confraternity, and they regularly took on the responsibility of conflict resolution among their members.²¹⁰ His findings from the 18^th and 19^th centuries encourage us to look inside the confraternity for evidence of jurisdiction. And indeed, in 16^th-century Granada, territory of the last Islamic kingdom to surrender to the Crown, Amalia Garcia Pedraza has shown how the confraternity of the Resurrection, organized around the city’s hospital, exclusively served the town’s native community (former subjects of the Nasrid dynasty) and may, potentially, have been involved in the planning of the Rebellion of the Alpujarras (1568–1570).²¹¹ These examples hint that minorities and marginal communities adopted confraternities, sanctioned by Christian authorities, as vehicles for self-governance with clear structures of authority and mechanisms for fundraising. Understanding how such distinct communities – formed by »ethno-cultural minorities, by indigenous peoples, by religious communities, by communes, by distinct smallholder groups and tribes, etc.« in the words of André Hoekema²¹² – functioned as normative bodies, and achieved some sort of official recognition (or conversely, did not), remains a particularly attractive research prospect.

Finally, I want to point to the potential for reconceptualization of the »republican« form of self-government. Recent work by the anthropologist Joanne Rappaport has pointed to the fact that self-identification is often situational, and that social forms of division and cohesion do not always match the lines that bureaucratic governments try to draw. Simply said, »groupness« does not necessarily obey the categories created by law.²¹³ She demonstrates how certain individuals in the colonial Americas could be simultaneously Spaniards and Indians, and even act as constituents in an emerging category with its own normative arrogations, such as mestizo, at the same time. Putting her insights together with those drawn from the recent literature on multinormativity,²¹⁴ a blurry picture of | coexisting and overlapping normative spheres emerges. Rappaport’s focus on »groupness« highlights the potential for an individual to be constituent in, and answerable to, multiple normative republics at the same time. This multiple association is unproblematic for our purposes, until the individual engages or is engaged by the Spanish legal system for the purposes of conflict resolution. Identifying and picking apart these liminal cases is promising not only for what it can tell us about the overlapping normative spheres to which an individual belongs, but also because close attention to how contemporary legal scholars undertook the process of deciding jurisdiction can highlight how the early modern understanding of jurisdictional divisions might have differed from our modern deductions.

Conclusion

We have arrived at a fruitful moment in legal historical studies of the Iberian World. Scholars long ago identified the basic structures of multi-confessional society in medieval Iberia. But only recently have advances been made in recognizing continuity in normative social structures after the period of forced conversions ending in 1502. Meanwhile, for the Americas, there has been a slow march, starting in earnest after the first publications of the school of New Philology in the early 1980s, to recognizing the structures of native authorities in the Americas and how they adapted to serve the needs of their communities under Spanish rule. Recent advances in the study of legal history have made significant strides in recognizing the role of custom in the administration of justice. The sum of these realizations and advances is transforming our understanding of the relationship between justice, law, and society in the early modern Spanish Empire. Much more than a system governed by grand concepts and administered by authoritarian ministers in Madrid, justice appears a much more local and contingent affair. New propositions from studies of legal pluralism, which identify a historical universe that generates normativity from a variety of sources, legal and non-legal, prompts a turn toward the local, and begs us to re-focus our energies on paralegal bodies, such as the confraternity or the indigenous social event as spaces for the construction of hidden jurisdictions, not sanctioned by the Spanish legal system, but nevertheless effective in guiding human action.

How does a look at recent work in legal history affect our understanding of convivencia as a concept? Traditional writing on the topic circumscribed its focus to the period of Iberian history in which the three religions tolerated one another’s beliefs and their right to decide internal disputes according to the legal structures underlying those beliefs. Two things are worth noting in that regard. First, there is some evidence that the medieval relationships behind such a convivencia did not completely disappear by 1502. Instead, anecdotal evidence from within Iberian seigneurial territories suggests local Islamic jurisdiction in some places may have survived relatively unmolested into the 1560s. Furthermore, if we were to measure only by the yardstick of non-intervention in the Other’s religious cult, and the relinquishment of local jurisdiction over internal matters, during a number of decades Latin America (albeit unevenly) does not look terribly different than 15^th-century Iberia. Though the Crown and its ministers celebrated their many conversions in the Americas, even at the end of the 16^th century many natives had not yet been baptized and so occupied a complicated legal situation that left them free from some elements of Castilian jurisdiction.²¹⁵ Second, the immense power of custom in the Spanish legal system devolved norm-creation to the local level. On the one hand, this meant that across its many territories, the Castilian system was characterized by an intense and ever-present interlegality. In practice, this created significant space for accommodation that – while not a tolerance on par with medieval privileges accorded to Jews and Muslims – expanded the range of licit behaviors and devices for conflict resolution outside of the range explicitly prescribed by Castilian law. That begs the question, if a Castilian convivencia ever did exist in the first place, did it indeed disappear in 1502? Or did it merely transform?