Community and the Law in Northern New Spain

Abstract

Despite its fundamental importance, Spanish colonial law, derecho indiano, has remained something of a mystery to modern scholars. Perhaps the great chronological and ideological distance between us and the antiguo régimen plays a role. We often listen more sympathetically to those who espouse political ideas similar to our own, and we make assumptions based on the institutions with which we are familiar. As a result, modern historians often have joined with nineteenth-century patriots and foreign observers in denouncing the colonial legal system. Judicial administration is still depicted as ponderous, tyrannical, arbitrary, and corrupt. Clearly, many scholars have failed to appreciate the essential qualities of derecho indiano. A more careful scrutiny of the historical record reveals an intricate legal system that proved to be adaptable to the peculiar needs of the diverse regions of empire. Local modification of Hispanic law–derecho vulgar–was an important element of this flexibility and constituted a legitimate expression of local self-governance.