Law and Society in Latin America since 1800

Abstract

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.