Customary Law and the Nationalist Project in Spain and Peru

Abstract

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 at the local level during the Sendero interlude in Peru.9 A developing international jurisprudence increasingly defines and defends the rights of indigenous peoples under the rubric of human rights. Many recent constitutional reforms recognize, at least in principle, the multicultural and multiethnic nature of Latin American societies: new constitutions or amendments to existing charters passed in Bolivia (1994), Colombia (1991), Ecuador (1998), and Peru (1993) all recognize indigenous authorities, customary law, and special indigenous jurisdictions.10 Ethnographic research on local-level legal and judicial processes motivated by these events clearly indicates the pervasiveness of unwritten, taken-for-granted rules with graduated sanctions for all accepted categories of customary law.11 Thus, its failure to surface in the nationalist project of the nineteenth century is all the more surprising.I am interested in examining the conjuncture of forces in Peru’s nationalist project that kept customary law from emerging. I focus on institutional changes, including the creation of Peru’s own civil code, and the nationalist discourse of the nineteenth-century criollo elite and the indigenista counterelite of the early twentieth century. Such a detailed examination reveals a complicated set of interactions and not just a rather singular influence of the French Civil Code. Significantly different structures of law and power distinguished Peru from France; in particular, unlike France, Peru was emerging from its colonial past with major ethnic divisions.I will compare the treatment of customary law in Spain and Peru over the same period and in similar arenas. The French Civil Code also weighed heavily in the compilation of Spain’s own civil code. Yet, Spain was much more accepting of customary law than the Latin American states. In the late nineteenth century, when a regeneracionista counterelite challenged the reigning nationalist project in Spain, customary law, far from being ignored, was brought explicitly into intellectual discourse. Indeed, customary law is intimately tied up with conceptions of “local autonomy” that permeate Spanish collective memory and lie behind what Spanish scholars categorize as an instinctive (some say “natural”) reaction against state attempts to submit localities to political and bureaucratic control. So strong is the idea of local law and autonomy that writers from Borrow to Menéndez Pidal, Ortega y Gasset, and Madariaga have identified it as the essence of Spanish character.12I tentatively suggest that two sets of factors account for the different treatment of customary law in these two countries. First, while the French Civil Code influenced the nineteenth-century codification of civil law in both places, their respective statuses as colonizer and colonized influenced their stances. To pursue this argument, I examine the structure of law and power prior to the creation of the civil code in each country. Second, when crisis beset both Peru and Spain at the end of the nineteenth century, counterelites in each country attacked the reigning nationalist projects as reflective of foreign models. To advance their positions, the counterelites promoted a utopian alternative. In Peru, radical indigenistas created a myth of a glorious Inca past that established a role for mestizos as brokers, while Spanish regeneracionistas pursued a romanticized notion of medieval local autonomy resting on customary law. In neither case were these discourses created out of whole cloth; aside from the historical materials, selectively interpreted, the personal experiences and intellectual subcultures of the respective counterelites exercised a major influence on their positions.I view customary law, following Dundes Renteln and Dundes, as “a socially defined group’s orally transmitted traditional body of obligations and prohibitions, sanctioned or required by that group, binding upon individuals or subsets of individuals . . . under pain of punishment or forfeiture.”13 This body of knowledge and practice emerges in the interaction between localities and the state. Customary law comes into play in competing discourses of national identity and in the treatment it receives in the codification of state law. In each case, customary law may surface, or fail to surface, as an arena for nation building. For example, in the current debate over the construction of a multicultural, multiethnic nation-state in the Andes, the label one attaches to customary law assumes strategic importance. Peruvian legal anthropologist Antonio Peña Jumpa distinguishes the indigenous juridical tradition of Calahuyo, the highland community he studied, from both the civil-law tradition of European and Latin American states and the English common-law tradition. Yet, he prefers to label Calahuyo’s juridical system communitarian, rather than indigenous, in order to situate it within the category of peasant and native communities accorded special treatment in the 1979 Peruvian constitution.14 In contrast, Bolivian legal anthropologist Marcelo Fernández Osco labels the legal system of the Aymara community he studied “indigenous,” as part of his intent to locate Aymara legal culture within Bolivia’s discourse of nationhood.15I will focus on the attention given to customary law in the nationalist projects of the nineteenth century, rather than the origins and content of that law. While this approach to legal pluralism draws on resistance to and evasion of state law, this should not be taken to imply that either customary or state law is static or exists in isolation. Each is mutually constitutive in relation to the other.16 In Calahuyo, for example, state judicial officials charged excessive sums of money to resolve conflicts, which led villagers to devise their own conflict-resolution procedures. In doing so, however, they drew on legal traditions long established in state practice. Peru’s 1993 constitution, in its recognition of communal property, communal governance, and reciprocal and communal forms of labor recruitment, indicates an acceptance of customary law by the state.17 And, local and state law has been shown to be mutually constitutive in the formulation of property rights in water in northwestern Spain.18At the outset of the nineteenth century, Spain’s legal practice consisted of equally vibrant state law and local legal customs. State law was traceable to a seven volume legal code, the Siete partidas, attributed to Alfonso X and produced in the second half of the thirteenth century. The Partidas, and commentaries on them by legal scholars, represented an important attempt by the state to give order to the chaotic legal situation resulting from the Reconquest. It remained a real influence through successive codifications, including the Nueva recopilación of 1567 and the Novisima of 1809. In contrast, customary law, in both unwritten and written codified forms, was pervasive. Much could still be found in privileges and municipal charters, the fueros and cartas de población issued by kings, lords, church officials, or town councils to new settlers to encourage further colonization during the Reconquest. Customary law was also contained in village and town ordinances, required in state law by the nineteenth century.19 And, in regions such as Navarra, Vizcaya, Aragón, Catalonia, and Mallorca, foral law (as it came to be called) was accorded the authority of written law and considered equal, if not superior, to state civil and administrative law.Village and town archives surfaced as the repositories of the paper records of customary legal procedures. Archival practice was also an outcome of state intervention and by the early seventeenth century had been well established in administrative procedure.20 The delimitation of boundaries, for example, generated considerable documentation. By the late sixteenth century, annual or periodic boundary renovation had been incorporated into local governance and customary law throughout Castile.21 Textually documented and regularly renovated boundaries worked hand-in-hand with written municipal ordinances, customary law, and participatory democracy to defend communally controlled land, forests, pastures, and water against third-party encroachment. Through the institution of boundary practice, municipalities and the state mutually constituted their territorial and political identities. State law worked closely with local law in this regard. The state—through judicial institutions, contract guarantees, and a uniform legal code—legitimized the local knowledge and practice of property rights. Municipalities lowered the costs of the state legal system by providing precedents in customary practices for the codification of law, as well as viable alternative venues for conflict resolution. Textually documented boundary renewals gave permanence to local boundaries and legitimized them in state, manorial, and ecclesiastical judicial arenas. Incorporating documentary production into boundary practice brought the state directly into the domain of property rights—one that had, since the Reconquest, strongly local roots. For their part, villages and towns derived power from the state to compel adjoining municipalities to participate jointly in renovating their mutual boundaries.22Of major importance to both state and local law were state judicial institutions: in particular, the system of courts and procedure. At the outset of the nineteenth century, the state had inherited from the ancien régime a barely workable system, one plagued with multiple jurisdictions and judges who did not always follow normative procedures. The Constitution of 1812 initiated efforts to order and unify the jurisdictional system. By 1870, the reforms had borne fruit. Jurisdiction over all of the national territory was transferred to a Supreme Court in Madrid, and a series of provincial tribunals, district courts, and municipal judges were established below this level to correspond to administrative divisions.23Despite its persistence, at the outset of the nineteenth century, customary law was viewed with disfavor by the state. The plethora of customary laws, dispersed statutes, and patchwork legislation was blamed for rendering law and the judiciary inefficient and ineffective.24 The 1812 constitution called for the introduction of a uniform civil code, and in the early years of the century there was support for the project. The imposition of a uniform law-school curriculum and the promulgation of penal (1822), commercial (1829), and procedural codes (1855) cleared a path. In 1851 a commission produced a draft civil code, notable for its uncompromising stance on uniformity, erasing all legal differences, on the model of the French Civil Code.25 Castilian law clearly influenced the compilers, as did secular ideas applied to sensitive areas such as marriage. The government quickly realized the risk of alienating the Catholic Church and the foral regimes, and it forced through a parliamentary maneuver putting the project into limbo.The threat to abrogate Catalan law contained in the 1851 draft code had the unintended effect of “waking up a sleeping giant in the process.”26 Barcelona mounted a vigorous opposition to the proposal, objecting to the adoption of the Castilian model of the family, joint ownership of postnuptial assets, prohibition of emphyteusis, and limitations of testamentary power. The subsequent resistance kept the framers from pursuing the earlier absolutist position on legal uniformity.27 Compiling a completely unified civil code, while leaving out the practices, customs, and fueros of the foral regimes, would have been politically impossible. Ultimately, the framers of the civil code were unable to breach the gap between foral regimes and civil unity. Eventually, a civil code was compiled through the efforts of Manuel Alonso Martínez, a distinguished jurist and minister of justice under the Sagasta government. Martínez attempted to find a way around the interminable discussion of each article in the Cortes, which had defeated earlier drafts. His innovative solution came in a Ley de Bases submitted to the Cortes in 1888. The law proposed that the Cortes would be restricted to debating the general principles and bases for the compilation of the civil code. Following this stage, a technical commission would then translate the principles into specific laws. The proposed law was first rejected, but it passed in 1888 in a slightly modified form. Martínez drew on procedures laid out by his predecessor, the conservative minister of justice Alvarez Bugallal.28 Jurists were brought before the commission from Navarra, Vizcaya, Aragón, Catalonia, and Mallorca to find the areas where state law was feasible and others where foral institutions had to be respected. Martínez proposed solving the problem of foral law by inserting a series of exceptions into an appendix at the back of the code.29 Catalan jurists quickly objected to this compromise.30 In the final version of 1889, separate legal regimes in Catalonia and other foral regions were preserved.31But customary law at the local level gave even forai regimes pause.32 In dealing with the issue, the civil code declared the supremacy of state law but provided, in article 6, a procedure for addressing situations on which the code was silent or vague. In this event, local custom was to be followed, and in its absence, the general principles of law, including those of the Partidas, were to be decisive.33 The civil code represented an assault on local autonomy and customary law, but it fell short of the French model, and neither customary law nor the Partidas were eclipsed entirely by it.In comparison with France, Spain was less motivated to assault customary law as a challenge to the central state.34 Spanish feudal lords lacked the surfeit of rights and privileges of judges in prerevolutionary France, possessing largely jurisdictional authority over their holdings. By the early nineteenth century, jurisdictional señoríos had been abolished and civil and religious landholdings disentailed. Customary law in Spain also worked hand-in-hand with a highly decentralized society and considerable local autonomy marked by direct links between villages and towns and the capital. But dispersed centers of power were difficult to administer, especially in the context of a modernizing and centralizing state intent on extending control over the lower ranks of the administrative hierarchy. When the state embraced an ambitious agenda in the nineteenth century to unify the country and improve the administration of services, it put territorial reorganization at the top of the list. The first Spanish constitution, drawn up by the revolutionary national assembly in Cádiz in 1812, called for new territorial divisions; in 1833, 49 provinces were established. Spain followed France in transferring administrative power to—but withholding political autonomy from—the new regional bodies. The state retained power in Madrid and expanded it in the countryside.As state power shifted to the provincial level, villages and towns lost the direct link with the state they formerly enjoyed. The 1812 constitution attempted to introduce the French municipal model into Spain, and in 1877 a municipal code was instituted. Municipal mayors were granted political and administrative authority, working in concert with the municipal council. Throughout Spain, town halls were erected to house the mayor and the municipal council, representing their symbolic precedence over neighborhood councils (juntas vecinales) and village and town assemblies (concejos abiertos). In 1892, legislation brought municipalities firmly under the wing of provincial authorities. During democratic periods, municipal officers have been popularly elected and municipal autonomy was highly respected; during dictatorships they were appointed.35Uniformity in territorial administration had far-reaching implications. The administrative structure of large cities became identical to that of rural townships. Regions with long traditions of local governance, such as Castile and Catalonia, were carved up artificially into provinces. The contrast with traditional governance could not be greater. León represents a case in point. Many villages there still carried out local affairs in a concejo abierto after the Sunday mass. In the larger villages and towns, the junta vecinal, composed of legal residents (vecinos) and their elected mayor (alcaldepedáneo), followed similar procedures of consensual decision making. Villages and towns alike often continued to rely on ancient ordinances in their governance and administration.36 And agro-pastoralism, resistant to the nineteenth-century reforms, routinely forced problems onto the agendas of concejos and juntas vecinales. Ancient cultural models remained as viable templates for the management of biennial agriculture and collectively held pastures, threshing grounds, water mills, and forests.37At the end of the nineteenth century, a new urban administrative structure, municipal governance model, and civil code were in place. Taken together, these reforms weakened customary law. New territorial administrative units worked hand-in-hand with patronage and centralized appointments to strip rural communities of local control. The new model of municipal governance introduced an alien form of local administration among a rural populace used to face-to-face, consensual decision making informed by customary law. In eclipsing traditional local authorities, these new officials further diverted power to the new urban administrative organizations. The Spanish Civil Code removed much of the residual power de jure customary law retained from the past. Yet, customary law was not entirely eclipsed by the civil code. Foral regimes retained legal legitimacy and customary law at the local level remained a viable, de facto, form of private governance.Customary law was introduced into nationalist discourse in the modern era on the heels of a fin de siècle crisis. By the end of the nineteenth century, the appearance of cheap foreign cereals and legumes in domestic markets drove down prices. In the 1890s, the root louse phylloxera, recently introduced from France, almost completely destroyed the wine industry of northwestern Spain.38 Vegetable oils imported from outside Spain competed fiercely with olive oil. And, in 1898, the loss of Cuba in the Spanish-American War dealt a psychological blow to a country reeling from agrarian crisis.In Spain, counterelites surfaced to exploit real and perceived weaknesses in the nineteenth-century nationalist projects and offer an alternative direction of their own. Their targets were clear and compelling: foreign institutions introduced by the state to eclipse local autonomy and governance.39 A group formed around the Aragonés writer Joaquín Costa, the son of modest farmers from the Huescan province of Monzón. Costa’s regeneracionistas attacked the reforms as deviations from local autonomy and customary law. In his writings between 1895 and 1897, Costa forged an alternative model to state centralization: one of decentralized, local governance founded on fundamentally agrarian, small-holder institutions—in particular, customary law. His ideas were a purgative in a nationalist discourse humbled by the colonial disaster and helped create a powerful movement of public opinion.40While in Madrid pursuing a career in law, Costa came into contact with members of a vibrant Leonese intellectual class that included Gumersindo de Azcárate, J. A. Posé, Aldolfo Posada, Francisco Flórez de Quiñones y Díaz, Vicente Flórez de Quiñones y Tomé, and Elias López Morán. Azcárate and Posé had lived in small towns and villages in the province of León in northwestern Spain and were familiar with their systems of customary law. They found a rich and ancient tradition of local institutions to apply Costa’s revisionist ideas.41 The progressive educational ideas of the Institución Libre de Enseñanza were combined with regenerationist thoughts and promoted by the Leonese educational foundation, the Institución Sierra Pambley. The Institución Sierra Pambley put regenerationist ideas into practice by founding vocational and agricultural schools throughout León.42 The agricultural school in Hospital de Orbigo, for example, carried out experiments with new crops and tools.43Costa was nothing if not a passionate defender of individual liberties for all citizens. He felt strongly that one’s private affairs should remain sovereign and free from interference by the state. This notion of individual freedom, he argued, should also underlie higher levels of local and regional governance. It was incumbent on the state to recognize this principle in governance. Costa envisioned the principles of freedom, autonomy, and customary law as virtually indivisible and believed they were given voice in the spontaneous informal legal order of towns and villages. The state’s role was not to deny the legitimacy of these informal systems but to draw on them in elaborating laws that conform to the popular will. If successful, the “people” would be the principal legislator. Costa argued that a law that went against custom would be analogous to a state opposing the legal sentiments of the pueblo, a cause of disorder or even revolution.Costa saw the compilation of customary law as part of the project of crafting a constitution that embodied the necessary elements, drawn from practice, to meet with the popular will.44 To this end, he promoted studies of customary law in rural communities. In 1873 Costa won a prize offered by the University of Madrid for an essay on customary law that set the stage for a series of studies of customary law—beginning in 1880 with Costa’s monograph on Aragón and followed by studies of León by Flórez de Quiñones (1895) and López Morán (1897).45 In a congress in Zaragoza in November of the following year, Costa mounted a strongly argued defense of customary law.46 Under his influence, the prestigious Real Academia de Ciencias Morales y Políticas Popular organized a competition for contributions to the study of customary law—Derecho Consuetudinario y Economía. Winning entries were subsequently included by Costa in an important and widely cited collection, Derecho consuetudinario de España. These authors and others produced detailed monographs of customary law in Galicia (1916), Alicante (1905), Murcia (1916), and Valencia (1923).47 These studies were, in effect, the first ethnographic monographs on rural life in Spain.Sociological studies of customary law coincided with a wave of interest in Spanish medieval institutions. Historians and legal scholars such as Sacristán y Martínez, Colmeiro, Hinojosa, Valdeavellanos, Sánchez Albornoz, and Posada were publishing transcriptions of written charters, statutes, and privileges and reconstructing the medieval origins of local governance institutions.48 Historiographical interest in the medieval municipality served the needs of regenerationist discourse by offering a model of local autonomy and independence. Spanish regeneracionistas, then, created an alternative model of local autonomy resting on customary law set against an intellectually weak and morally corrupt centralizing state. Their ideas were informed by their rural backgrounds, the influence of Leonese intellectuals, field studies informed by ethnographic research, and an ideology of individual liberties. Boundary practice and other institutions were represented as an element of customary law buttressing local autonomy.At the outset of Peru’s transition from colonial rule to independence, the legacy of customary law was as strong as Spain’s, but for quite different reasons. Spanish colonial administrators had exercised unquestioned domination over their subjects but needed to ensure stability in order to obtain tribute. Penetrating every domain of potential legality was costly and unnecessary in light of the ultimate goal of tribute collection, and abrogating customary law in most instances would have created more problems than it was worth. Recognizing this, colonial administrators allowed Indians to enjoy certain rights as members of Indian republics in return for tribute and the acceptance of colonial rule. The crown recognized traditional rights to common property and endowed it with a special status to protect it from market forces. This was not necessarily an innovative administrative policy but rather followed the practice extended to common property in Castilian towns and villages. Community property in two forms, inalienable tierras de repartición and alienable tierras de composición, were subject to tribute obligations.49 Indians were also permitted to use the Spanish legalism of long-standing practice (“from time immemorial”) to press claims to land in colonial courts.50 Tribute collection was the responsibility of alcaldes de indios (rotating village political authorities) or varayoc (staff-holders), who represented the community to the larger society. Allowing Indians to choose these authorities gave them a degree of political autonomy. Separate treatment helped, but it did not entirely keep Indian republics from challenging colonial elites.An important element in Spain’s treatment of Indians entailed access to the justice system by means of a special legal representative, the protector (or defensor de naturales) who assisted them in preparing their cases. This formidable tool helped many Indian communities retain rights to land and water. As Stavig has shown for the upper Vilcanota (Urubamba) region of Cuzco, Indians actively contested the usurpation of their communal lands and water rights in the courts.51 Even though legal struggles were long and costly, persistence often paid off. While not all usurpations of land and water could be brought before the courts, and many were dropped due to costs, Indians were successful more often than not in the cases f