2 - How to Approach Indigenous Law?

Summary

After many years during which indigenous laws were mostly absent from narratives of Latin American law, presently, legal historians wish to integrate them. However, to do so requires answering the question of what we know about indigenous laws and how we can approach them. Writing the history of indigenous laws from precolonial times is especially challenging not only because of the diversity of human groups that occupied the continent, but also because of the disparity of available sources, ranging from material vestiges and pictographic documents to texts produced in indigenous writing systems. Furthermore, the colonial period has left us with a wide range of alphabetic texts, diverse in authorship, languages, formats, degree of accuracy, and sources selected, that describe precolonial law. Indigenous peoples, mestizos, and Spaniards also wrote historical narratives and accounts of deeds and services; furthermore, they participated as litigants in lawsuits in which they expressed their vision of law and justice. What does this evidence tell us about precolonial normative orders and the way in which they intersected with colonial law after the Iberian imperial conquests? To answer this question, this chapter proposes an interdisciplinary approach, surveying what has been done, and what could still be done.

It is important to remember that both the term “indigenous peoples” and the concept of “precolonial past” were created as categories only at the time of the European invasion. This does not mean that the people so described did not have their own ways for defining themselves and registering the past, but rather that transforming the conquest into a turning point in the historical narrative was part of an epistemological colonial setting per se. The issue is especially acute when dealing with precolonial law because most the available written sources on this topic were recorded during the colonial period and were therefore drafted from the perspective and in the language of their time. How then to approach indigenous law?

For many years, this question was mostly ignored by legal historians. As Carlos Petit points out in Section 1.1, “the Latin omits or silences the American, that is, the presence and experiences of indigenous peoples” in the history of law. It is therefore necessary to first shed some light on the factors that might explain this lack of interest in indigenous law, which prevailed in legal history from the nineteenth century until the 1920s and explain why this law acquired increasing relevance from that moment on. The first section of this chapter will highlight the links between the treatment of the indigenous component in Latin American legal history and the position that both the indigenous peoples and the law were thought to occupy in the societies in which those narratives were written. The second section will provide a dynamic picture of precolonial law and show that to study this topic requires questioning the relations and boundaries between various disciplines such as archaeology, history, and anthropology. Writing the history of indigenous law from precolonial times is especially challenging, not only because of the diversity of human groups that occupied the continent but also because of the disparity of sources available according to the cultures and periods under consideration. Not all the indigenous peoples have left lasting material traces throughout America over the centuries. Moreover, although the Olmecs, the Maya, the Mixtecs, and the Aztecs created systems of writing, only a few precolonial texts have survived to the present day. A similar observation can be made with regard to the khipus, a system of cords with different colors and knots that were produced in the Andean region from the time of the Wari culture. Nevertheless, the progress made in the fields of epigraphy, archaeology, and ethnohistory sheds new light on indigenous law.

The last section will propose a reflection on the relations between indigenous and European law in the aftermath of the Spanish and Portuguese conquests. We will show that, after the Iberian conquests, a wide range of alphabetic texts focusing on precolonial indigenous normative orders was produced. These records were diverse in authorship, languages, formats, degree of accuracy, and sources selected. Not only the Spaniards but also indigenous peoples and mestizos (individuals of mixed descent) wrote – sometimes in their own languages – historical narratives, accounts of deeds and services, and requests to the king. Furthermore, indigenous people participated as litigants in a number of lawsuits in which they gave their own vision of law and justice according to their own interests. It is therefore necessary to ask what this evidence tells us about precolonial normative orders and the way in which they intersected with colonial law after the Iberian imperial conquests.

Indigenous Law in Historiographical Perspective

Although, as will be shown later, the indigenous past was an essential component in writings from the colonial period, the rise of nation-states in the first decades of the nineteenth century marked a shift in the position that both indigenous peoples and their law were held to occupy in Latin America. As was common at that time, the society in which the modern state was going to be built was expected to share a homogenous national identity. Defining national identity as white and European led the Latin American elite either to ignore indigenous peoples or to consider them a problem to be solved through assimilation or, in some extreme cases, physical elimination.¹ Furthermore, the contradiction between a universalist and egalitarian understanding of law and a hierarchical and racialized conception of society was “solved” by creating unequal forms of citizenship within the first Latin American constitutions on the basis of cultural, moral, socioeconomic, or racial grounds.² According to José María Portillo, a definition of the citizen as an autonomous individual closed the doors of political inclusion not only to women but also to “the plebeian sector of those societies, mainly mestizo and indigenous.”³

This is not to say that the precolonial indigenous past was hidden, since its monuments were brought into the spotlight by the consolidation of archaeology as a scientific field, but rather that the dead “indians” and their ancient civilizations were separated from the living. Antiquarians and scholars considered that “contemporary nineteenth-century American Indians were not direct descendants of the enlightened dwellers of ancient America; or if they were, their stock had degenerated beyond recognition.”⁴ In other words, interest in the indigenous past was articulated around the issue of the origins of humanity and ancient world civilizations, through racist, diffusionist, and evolutionist approaches. In doing so, archaeology emerged as partipant in a political project that followed the exclusionary national model, as evidenced by its close links with the museums as well as by the enactment of the first laws intended to protect the patrimony of the Latin American countries.⁵

Furthermore, in line with the desire for a state monopoly over normative production, it was not really possible for contemporaries to see “law” without also taking into account the notion of state itself; or, to put it differently, “law” was defined by them as the written systems of norms decreed by a state. With the existence of precolonial states not even deemed worthy of consideration, legal historians manifested little if any interest in any hypothetical precolonial law. In fact, the very idea of a precolonial indigenous history was questioned, since historical science was thought to be the study of written, and preferentially alphabetic, texts. As Petit points out in Section 1.1, the disintegration of the Spanish empire and the perception of the United States as a threat also played a key role in constituting transatlantic networks of intellectuals around the notions of raza and hispanidad.⁶ Accordingly, the history of law in Latin America was thought to begin with Spanish and Portuguese law, in an area covered by the derecho indiano.⁷ As for the derecho patrio, which emerged in the newly created Latin American nation-states after the wars of independence, this was formulated within a national framework that barely considered indigenous peoples and excluded precolonial law altogether (see Section 1.1).

However, there were alternative, although marginal, narratives. In 1864, a Mexican lawyer called Francisco León Carbajal wrote a dissertation on the “legislation of the ancient Mexicans” in which he argued that “if we want to give fair, beneficial and efficient laws to our homeland, not only the few European elements that Mexico possesses, but also particularly the indigenous ones have to be taken into account.”⁸ The author made use of the early colonial pictographic manuscript known as the Codex Mendoza, published by Lord Kingsborough in 1831, which he described as “a judicial lawsuit in Aztec hieroglyphs.”⁹ In Peru, some oral traditions regarding the “just laws and moral values of the Incas” were recorded by Cesare Cantú, in his Historia Universal, and by Gabino Pacheco Zegarro in his translation of the Quechua play Ollantay.¹⁰ In Brazil, José Izidoro Martins Junior warned against “the error of forgetting the forces of indigenous and imported black peoples,” alongside the European racial substratum, for the formation of Brazilian nationality in his História do Direito Nacional (1895).¹¹

In order to better understand this marginal trend in Latin American legal history, one should look at it in a larger political and intellectual context. In the nineteenth-century United States, a number of scholars became interested in the indigenous past, with a clear prevalence of a museum-based archaeology. They also sought to find, by studying the recollections of a few indigenous men, a past that they felt was in danger of disappearing. It is worth noting that this movement was closely linked to nationalism.¹² Moreover, it aimed to achieve a continental dimension, as was demonstrated by the interest shown by North American intellectuals such as Daniel G. Brinton or John Lloyd Stephens for precolonial Central American past and ruins.¹³ The “Native American tradition” therefore offered an alternative to the concepts of raza and hispanidad in Latin American national discourses and was echoed in legal history.

In the twentieth century, however, under the influence of Franz Boas, anthropology’s primary institutional basis changed “from museum to university.”¹⁴ Not only was the notion of “museum anthropology based on evolution and diffusion of items of material culture” questioned, but anthropology also moved out of the shadow of archaeology. Its main objective went from seeking in a few men’s recollections a past in danger of disappearing to the study of living communities.¹⁵ From this perspective, the historical approach became one factor among many in the understanding of any given community.¹⁶ British functionalist anthropologists such as Alfred Radcliffe-Brown even called into question the pertinence of history in the analysis of “social laws.”¹⁷ These debates, which transcended national boundaries, had critical consequences not only for the understanding of normativity but also for the place contemporary indigenous peoples occupied in the academic field, since their “social laws” became the subject of anthropological studies. Moreover, anthropological studies aimed to be useful in forging state policies within and outside national boundaries, either to address indigenous issues or to implement imperialist views.¹⁸

Mexican intellectuals such as Manuel Gamio or Moisés Sáenz, who both studied at Columbia University in the 1910s, were in contact with Boas and the sociologist and advocate for “Native American matters” John Collier, who played a key role in shaping the “Indian policy” in the United States in the 1930s.¹⁹ They also had close ties with other Latin American scholars.²⁰ The Congresos Indigenistas Interamericanos and especially the first one held in Patzcuaro in 1940, which lead to the creation of the Instituto Indigenista Interamericano, were also critical in structuring the field of indigenismo, which oscillated between an “inter-American scope and national trajectories.”²¹ Although anthropology was central to indigenismo, it is essential to ask what the place of history and, especially, the indigenous past was in order to understand how precolonial law was being addressed during this period.

Mexican sociologist Lucio Mendieta y Núñez, who founded the Instituto de Investigaciones Sociales at the National Autonomous University of Mexico in 1930, stated that law was “nothing but one of the expressions of the culture of a specific group and transforms itself depending on the group who creates it, following his historical and social contingencies.” According to him, it was “necessary to deal with the law observed by the indigenous peoples before the conquest … because … the actual population of the [Mexican] Republic, in its aboriginal groups, has many cultural contact points with its primitive inhabitants.”²² In other words, law was now conceived as a cultural product and a connection was drawn between the indigenous present-day social life and precolonial past, therefore justifying a dialogue between anthropology and history. Moreover, knowledge of indigenous law, past and present, was now expected to be part of the “national identity” and to be used in the implementation of the nation’s legal policies.

It is thus not surprising that during this period precolonial law was studied by anthropologists or sociologists whose interest in indigenous contemporary life extended to the ancient past, with a view to applying anthropological knowledge to state policies. In this respect, it is important to note that a preliminary version of Mendieta y Núñez’s work was published in Ethnos, a review edited by Gamio, and that the anthropologist Carlos H. Alba’s Estudio comparado entre el derecho azteca y el derecho positivo mexicano was published a few years later by the Instituto Indigenista Interamericano with a prologue by Gamio.²³ In Peru, the anthropologist Luis Valcárcel, who had close ties with the intellectuals José María Arguedas and José Carlos Mariátegui, played a key role in promoting Inca laws as a subject for study in the 1920s and 1930s. He became the director of the Instituto Indigenista Peruano in 1948.²⁴

Given this context, precolonial law, which had previously been of marginal or no interest at all, took on significantly more importance in the writings of Latin American legal historians. A number of Mexican jurists began writing texts on the “judicial institutions of the civilized indigenous people of Mexico before the conquest,” to use Alfonso Toro’s expression.²⁵ Moreover, “Aztec law” was included in the lessons on the “History of National Law” that were given in the Escuela Libre de Derecho, an institution created in Mexico City in 1912. Josef Kohler’s El derecho de los aztecas, first published in German in 1892 as an exercise in comparative law, was translated into Spanish and published by the Revista jurídica de la Escuela libre de derecho in 1924 and circulated widely throughout Latin American.²⁶ A similar trend can be observed in Peru, as recently shown by Carlos Ramos Núñez.²⁷ The relation between academic knowledge and state policies, and the tensions between the wish not only to recognize and protect but also to integrate and assimilate, were reflected in contemporary Latin American national institutions, as evidenced by the creation in Brazil of the Serviço de Proteção aos Índios (1910) and of the Conselho Nacional de Proteção aos Índios (1939).²⁸

Because sources for legal history are “invented” by legal historians, in a sense that they fit their own idea of what the law is in the first place, it is also legitimate to ask what sources were used to write the history of precolonial law in the early 1900s.²⁹ The majority consisted of Spanish texts from the colonial period that had been found and published by nineteenth-century scholars such as Joaquín García Icazbalceta.³⁰ In Peru, significant work was undertaken by Horacio Urteaga and Carlos Romero.³¹ Indigenous and mestizo chronicles, however, were almost absent. More critically, the legal historians mentioned earlier did not take into account the imperial context of how these sources were produced. It was as if those texts faithfully “reflected” the precolonial indigenous past and as if colonial policies had had no impact on indigenous peoples’ history – thus justifying the drawing of a connection between their precolonial past and their contemporary life.

However, the Cold War and the struggles against colonial regimes brought about a change among anthropologists and helped create “a sense of how the changing world order … affected the imperatives of their work.”³² According to Brian K. Axel, before World War II, “within anthropology, the primary concern with history was in evaluating its use as a technique of reconstruction – the viability of which relied upon whether it might successfully yield an image of primitive society prior to the advent of colonialism,” a tendency he also called the “prewar fetish of precolonial purity.”³³ In the post-World War II era, however, the awareness that communities were “enclosed in, and form part of great historical societies” became critical.³⁴ This shift affected the relation between anthropology and history, insofar as they were now concerned with the changes that affected human groups within complex societies. In the 1960s, those new concerns gave rise to the advent of “ethnohistory,” an academic and intellectual movement that can be defined as the study of the indigenous peoples from an interdisciplinary perspective seeking to bridge the gaps between archaeology, history, and anthropology.³⁵

For ethnohistorians it was especially important to analyze the history of indigenous peoples during the colonial period, an aspect that had previously been neglected. The question of continuity of and rupture with precolonial indigenous practices under European colonial domination became a key topic in ethnohistorical studies. This trend also emerged alongside the “invention” of new sources, placing at center stage the publication and study of indigenous chroniclers, archival material, and texts written in local languages or in local scripts.³⁶ John V. Murra’s career and his interest in the precolonial, colonial, and contemporary indigenous peoples of the Andes are emblematic of the rise of ethnohistory among Latin Americanists. In 1978, he stated that “the living continuities of the Andean world, especially in agriculture, the reciprocity in the working relationships … make the use of ethnological evidence indispensable for the understanding of the pre-European organization.”³⁷

Not only did Murra participate in excavations in Ecuador financed by the Institute of Andean Research in the 1940s, but he also attached great importance to Spanish chronicles as well as to archival material. The Proyecto de Huanuco (1964–6), for example, combined archaeological prospection, fieldwork, and information resulting from a visita, that is, an inspection made by colonial authorities in the region in 1562.³⁸ Through his correspondence, the organization of congresses and teaching seminars, and the publication and exchange of books and archival material, Murra created a network of personal and institutional ties with scholars throughout Latin America, Europe, and the United States. As Ramos has shown, mobilizing this network was crucial to the consolidation of both ethnohistory as an academic field and the definition of the Andes as a regional and cultural area (one that went beyond the national boundaries of Peru), thus establishing a counterpart to the concept of “Mesoamerica.”³⁹

There is little doubt that the accumulation of archaeological and archival data, the publication of texts written in local languages in the early colonial period, and the progress in deciphering the Mesoamerican and Andean writing systems largely contributed to a renewed understanding of precolonial law during the 1970s and 1980s.⁴⁰ But what did this bulk of works on Mesoamerica and on the Andes have in common? In what theoretical and methodological frameworks were these texts written? The hypothesis of the cultural continuity from precolonial past to present-day social life was a key issue, since it allowed, and even encouraged the combined use of archaeological, historical and ethnographic data. It also enabled the incorporation of theories developed in the field of legal anthropology, not only in America, but also in Africa or Oceania. Jerome A. Offner used the concept of the “reasonable men” – introduced by Max Gluckman in 1955 to refer to judges in the British colony of Barotseland in Africa who “used implied standards of behavior in reaching decisions” – to describe the Texcocan legal system.⁴¹

As Murra pointed out in 1978, it was of equal importance to draft an “integrative description of a specific society, avoiding its classification according to categories borrowed to the European economic and social history.”⁴² The concepts of “reciprocity and redistribution” and of discontinuous territorial control sought to describe the relations between the “Inca state” and its subjects.⁴³ In his prologue to Alfredo López Austin’s La constitución real de México, Miguel León-Portilla outlined that one of most important achievements of the book was to have outlined “the indigenous people’s own vision of their laws” and the “Aztec world’s idiosyncratic legal categories.”⁴⁴ Quite paradoxically, however, another critical idea in ethnohistorical studies was the existence of precolonial states, which were perceived as being similar to their European counterparts, probably with the purpose to go beyond previous hierarchizations. The word “constitution,” defined as the “statal organization generated by the social manifestations that structure the relations … between individuals,” was used, for example, by Alfredo López Austin to describe the Aztec state: The author considered that “any state is structured by a constitution, whether or not a systematic body of juridic norms exists.”⁴⁵

While some scholars described indigenous states, others instead suggested that at least some indigenous societies were built “against the state,” to use the title of Pierre Clastres’ influential study based on the ethnography of the Awé of Brazil.⁴⁶ His work offered an alternative interpretation to the growing bulk of literature focused on the Maya “city-states,” the Muisca “confederation” or the Inca and Aztec “states” or “empire.” Clastres described a society with little centralization, ruled by chiefs who maintained their authority through speeches and were accountable to their people. Some archaeologists projected this vision into the precolonial past of some indigenous groups on the basis of two main arguments: the absence of significant archaeological vestiges, on the one hand, and the reliance on the European chronicles in which the notion of behetría, defined in Sebastián de Covarrubias’ 1611 Castilian dictionary as “the freedom to change señores, thus generating great confusion,” was used to define several communities.⁴⁷ Archaeologists Betty J. Meggers and Clifford Evans, for example, developed the theory of the “tropical forest culture” to describe the Amazonian precolonial indigenous past. They emphasized the “lack of cultural traits,” the “environment-based explanation,” and the “peripheral perspective” with respect to the Andean culture.⁴⁸ The result was the gradual building of an alleged opposition between Mesoamerica and the Andes and “other areas” of the continent.⁴⁹

The 1990s, however, were marked by “a persistent critique of the legacies of colonialism in the formation of the modern nation-states and institutions of knowledge production like the area studies.”⁵⁰ In other words, scholars became interested in exploring not peoples, but rather “the production of a people,” not territories, but rather “the production of space and time.”⁵¹ This line of inquiry gave rise to a questioning of national frameworks and center-periphery relations. By contrast, the interplay between the local and the global became a central category of analysis.⁵² As instrumental were the shifts in approaching the history of science, which advocated taking into account the Iberian experiences, on the one hand, and bridging the gap between the local and the global scale in the production of knowledge, on the other. These changes had an impact on the history of law, now understood as a process of legal knowledge production, in which a wide range of actors participated in dialogic and conflictive ways (see Section 1.4).⁵³

When Laura Nader proposed to carry out an anthropological study of the state, she expressed the wish to break the “North/South” line that marked the division between state and non-state societies, between legal and extra-legal cultures that was reproduced in the boundaries between legal sociology and legal anthropology.⁵⁴ As explained by Jonas Bens and Larissa Vetters, until those years,

as sociology investigated those societies characterized by the “modern” nation state, legal sociology was consequently responsible for law in the Global North. As anthropology investigated those societies where the state was presumed to be absent, legal anthropology was consequently responsible for the law of “premodern” non-state societies in the Global South.⁵⁵

Boaventura Sousa Santos also called attention to the overlaps, coexistence, and interpenetration of different normative orders in a same society, a phenomenon he defined as “interlegality.” And Sally E. Merry engaged with the concept of legal pluralism and the relation between law and colonialism, thereby rendering more complex the understanding of how knowledge of normativity was produced in a world marked by local/global dynamics and by colonial domination both in the past and in the present.⁵⁶

Thanks to the contributions of scholars such as António Manuel Hespanha or Víctor Tau Azoátegui, in recent years our understanding of early modern legal cultures has gone through a complete renewal, marked by a growing distance with respect to the nineteenth-century paradigms. As Tamar Herzog points out in this volume (see Section 3.1), early modern law “featured discussions rather than solutions, guiding ideas rather than rules” and if “there was never a single authoritative answer … neither was there a single jurisdiction,” since early modern “jurisdictional states” were formed by “a conglomerate of communities and corporations,” each one of these units having “authorities endowed with jurisdiction, that is, the capacity to declare and apply the law.”⁵⁷ These changes affected how historians, anthropologists and archaeologists approached not only Iberian imperial law, but also precolonial law. Indeed, they treated the dichotomy between “state” and “non-state” societies more cautiously and paid increasing attention to legal pluralism.⁵⁸

In the field of Amazonian archaeology, the tropical forest culture theory was abandoned in the 1990s, and the “environment-based explanation” and “peripheral perspective” with respect to the Andes were replaced by an insistence on the “political character” of late Amazonian precolonial societies and the idea that the Amazonian landscape was a “cultural artefact.”⁵⁹ According to Eduardo G. Neves, this shift was due to the re-evaluation of colonial sources, as well as the “warning against the indiscriminate use of ethnographic analogies in the interpretation of the archaeological record.”⁶⁰ In the same period, as noted by Oscar Calavia Sáez, the historiography on indigenous people benefited from a more complex approach to the notion of power and of the pre-modern “states” in both European and extra-European spaces.⁶¹ Moreover, the idea of cultural contact, understood as the influence of the European colonizers on indigenous peoples, was reframed in terms of “dialogical relation that constituted both metropole and colony, the European and the other, as indissociable.”⁶²

Already in the 1980s, Bernard Cohn stated that

the anthropological “other” are part of the colonial world…. Whites everywhere came into other peoples’ world with models and logics … with which they adapted the construction of new environments, peopled with new “others.” By the same token, these “others” had to restructure their models to encompass the fact of white domination and their powerlessness.⁶³

Cohn therefore considered that the “colonial situation” had to be viewed “as a situation in which the European colonist and the Indigene [were] united in one analytic field.”⁶⁴ From this perspective, historians outlined that the colonial sources are not an exact reflection of precolonial indigenous past, but rather reconstructions elaborated from the perspective of a “colonial situation.”⁶⁵ Some even asked whether or not it is possible to capture the pre-Hispanic past through colonial sources, even those written by indigenous authors in their own languages in the aftermath of the Iberian conquests.⁶⁶

But this perspective regarding the past also enables us to put increasing emphasis on indigenous agency, understood as the indigenous people’s capacity to respond to imperial domination either with their own epistemological tools or with Europeans ones. For specialists of indigenous history, the indigenous people’s agency in using or, even, forging the law under imperial rule thus became an especially challenging issue.⁶⁷ There is little doubt that present-day struggles for the recognition of indigenous normative orders and jurisdictions within the legal systems of the Latin American nations, as shown by Daniel Bonilla Maldonado in Chapter 7 of this volume, constitute another key factor that helps explaining the increased interest of scholars in precolonial law and its evolution under Iberian imperial domination.⁶⁸ According to Alexandra Huneeus, Javier Couso and Rachel Sieder, the analysis of the conditions in which legal pluralism emerged in Latin America requires additional work “on the political role of law and courts in political struggles in Latin American history, as well as the legal history of particular struggles.”⁶⁹ Obviously, these changes, which occurred on a global scale, are affecting our understanding of the role that indigenous peoples have played and still play in forging the law and writing Latin American legal history.

Precolonial Indigenous Law

Given the diversity of the peoples that lived throughout Latin America over time, the following passages offer a study of indigenous law as allocated to specific groups and moments, with special emphasis on the period that preceded the European conquests. Any such study must begin by affirming the obvious, namely, that these legal orders changed over time, since they were designed to meet the needs of the society in which they were produced. Drawing on the interpretation of ancient “painted histories and annals,” the indigenous intellectual Alva Ixtlilxochitl, who wrote in seventeenth-century Tezcoco, stated that shortly after establishing his people in the Valley of Mexico in the tenth century, the Acolhua ruler Xolotl enacted a series of laws to regulate agricultural and hunting practices. According to the chronicler, “burning the fields and the mountains was forbidden without the ruler’s license and, if appropriate, punishable by death”⁷⁰ and “taking the prey that had been caught in someone else’s nets was forbidden and punished by the confiscation of one’s bow and arrow.”⁷¹ A few generations later, however, Nezahualcóyotl developed a complex legal system in which justice was administered by specialized courts and a series of crimes and punishments defined and recorded.⁷²

A similar emphasis on the historical dimension of precolonial law can be found in the Royal Commentaries, in which Garcilaso de la Vega, known as “El Inca,” a mestizo from both Spanish and Inca descent, stated that Inca rulers brought “natural law” and “urbanity” to the people they conquered. According to Garcilasco,

as these people were living, or dying, in the way we have seen [behetría, or barbarism], God our Lord permitted that from amongst them there should arise a morning star; someone who would illuminate that extreme darkness and offer people some notion of natural law, and of urbanity, and of the respect, that men should have for one another; so that the descendants of that prophet, proceeding from good to better, would tame the savages and convert them into men, capable of reason, and of receiving any good doctrine: so that when this same God, the sun of justice, finally decided it was the right time to send the light of his divine rays to those idolaters, he would find them no longer savage, but more docile and capable of accepting the Catholic faith.⁷³

It is true that this account was influenced by the concepts and language of the imperial world in which Garcilaso lived, since he used the contrast between “urbanity” and “barbarism” to compare the Incas with other Andean cultures.⁷⁴

Although Garcilaso might have exaggerated the differences between various indigenous cultures in an attempt to idealize the Inca rule to Christian readers, it is nonetheless plausible that the Inca imposed new laws on other population groups in the Andes and that the expansion of Quechua played a key role in this process.⁷⁵ Inca Garcilaso went a step further when he compared Quechua to the “civilizing impact of Latin in the Roman Empire.” According to him, the Incas

domesticated and united a great variety of different nations of conflicting religion and customs whom they brought into their empire, welding them, thanks to the use of a common language, into such union and friendship that they loved each other like brothers.⁷⁶

Garcilaso’s objective was not only to claim legitimacy for the descendants of the Incas to govern the Andean region, but also to defend Quechua as the language of evangelization, since the clerics were supposed to speak the language of the parishes in which they exercised their pastoral duties. Some local languages became “general languages” in extended territories of the Iberian empires.⁷⁷

However, the imposition of vehicular languages, the emergence of bilingual mediators, and the formulation of dominant linguistic ideologies might also have been common practices in precolonial times.⁷⁸ Long before the Portuguese and Spanish conquests, the Valley of Mexico was a mosaic of diverse ethnic groups that spoke different languages, but Nahuatl was the lingua franca even in distant territories such as Oaxaca and Guatemala.⁷⁹ In the southwestern coastal areas of Guatemala, El Salvador, and Nicaragua, a Nahuatl dialect called Pipil had been spoken since 900 AD due to “trade and diplomacy prior to the rise of the Aztec State,” a phenomenon reinforced by Aztec expansion.⁸⁰ Alva Ixtlilxochitl’s and Garcilaso’s narratives suggest that law was used to govern multiethnic and plurilingual societies that were constantly involved in wars and processes such as migrations, territorial reorganization, and ethnicization. In other words, language policy, diplomacy, matrimonial alliances with members of the local ruling elites, the dispatch of agents and, eventually, migrants through distant regions, and the privileged status of merchants were part of precolonial indigenous legal cultures.⁸¹ According to Tsubasa Okoshi Harada, the post-classic Maya cúuchcabal, which the Spaniards translated as “province” in Castilian, did not designate territories with continuous frontiers, but rather the people who depended on a local ruler by alliances, kinship, or war.⁸²

The accumulation of information about other peoples, natural resources, and territories might also have been characteristic of the way in which law was forged and adapted to local situations in precolonial times. For a long time, insufficient knowledge of pre-Hispanic systems of writing and the assumption that, before the European conquests, justice was delivered orally – an interpretation in part supported by the fact that, during the colonial period, indigenous “uses and customs” were not habitually written down – led scholars to assume that indigenous law was unwritten. Nevertheless, we now know that the use of khipus was widespread in the Andes even before the Inca period. Scholars also suspect that these records contained not only tributary, but also historical evidence (see Section 3.1).⁸³ The lámina 3 of the Mapa Quinatzin, in which a series of crimes and punishments were depicted, could be considered as an early colonial pictographic reminiscence of the “written laws” decreed under Nezahualcóyotl’s rule in Texcoco.⁸⁴ This document, now kept at the Bibliothèque Nationale de France, is thought to have been one of Alva Ixtlilxochitl’s main sources for describing precolonial law.⁸⁵

The nobleman Motelchiuhtzin, who was in charge of the Aztec estate under Moctezuma II and was baptized under the Spanish name of Andrés de Tapia, kept a number of pictographic records in his house in Tenochtitlan. According to the Spanish conqueror Bernal Díaz del Castillo, Tapia kept a record of “all the tributes due to Moctezuma; he did so with the help of [old] books made of a paper called amatl, which filled a big house.”⁸⁶ Rossend Rovira Morgado points out that this archive in the Tapia family’s possession might well have been one of the reasons why the Spanish authorities promoted Don Andrés’ son to make him one of the most influential indigenous interpreters of the Audiencia of Mexico.⁸⁷ According to a 1576 source, the Tapia family kept in one of their houses “boxes and feathers, and ancient paintings in which his Majesty’s [Moctezuma’s] tributes were recorded.”⁸⁸ Ethelia Ruiz Medrano and, more recently, Ana Pullido Rull have shown that “the use of paintings for litigation was a constitutive element of the Aztec legal system.”⁸⁹ Written records of precolonial law were not produced only by the Aztecs or Incas. The social pre-eminence of Maya scribes, observable in the classic and the postclassic iconography, indicates that Maya codices might have been used in registering and keeping normative knowledge.⁹⁰

Vasco de Quiroga, judge of the high court (audiencia) of Mexico between 1531 and 1535, recognized that precolonial pictographic records of the Valley of Mexico contained “legal cases” that might have served as jurisprudence in the resolution of conflicts.⁹¹ In his Información en derecho (1535), Quiroga claimed that

the Indians did not have ordinances, but paintings similar to annals that contained the cases and the facts like they had happened and occurred fairly or unfairly and they painted them and considered them not as laws, but as examples of what others did badly or well, which is, according to law, reproved since non exemplis sed legibus in [ju]dicandum est.⁹²

These practices might explain why, during the early colonial period, extensive use was made of both khipus and pictographic records in Spanish courts of justice (see Section 3.1).⁹³ Equally, the systematic destruction of pre-Hispanic codices in the sixteenth century, although traditionally explained as part of the attempt to eradicate indigenous belief systems, could also have been motivated by the Spaniards’ wish to erase their legal content.⁹⁴

The intertwining of religious beliefs with the normative order, which was typical of the Iberian legal cultures, also operated among the indigenous peoples. According to Friar Bernardino de Sahagún, from 1524 on the Spaniards sought to

destroy the objects of idolatry, and even the customs of the republic [of the Indians] since they were entangled with their rites and associated with their ceremonies of idolatry, which happened to almost all the customs by which this republic was ruled; and, for that reason, it was necessary to dismantle everything and establish another kind of policía (regime) that had nothing to do with their objects of idolatry.⁹⁵

Even through Sahagún preferred the term “customs” to that of “law,” probably in an attempt to create a hierarchy between indigenous and Spanish legal orders, he recognized the existence of “a kind of policía,” that is to say, a series of rules according to which the precolonial republic was governed. The Nahua word tlamanitiliztli, defined by Sahagún as “the laws and the customs that the ancients in the republic bequeathed,” certainly conveys the idea of a normative order.⁹⁶

The intertwining of indigenous law with indigenous belief systems and their ceremonial dimensions might explain the zeal manifested by Europeans not only in destroying precolonial records but also in prohibiting or re-signifying pre-Hispanic dances in the early colonial period. Nonetheless, in some cases, the Spanish religious and civil authorities sought to make use of local linguistic expressions and written or visual traditions as well as rituals, and to insert them into the new religious, political and legal order.⁹⁷ The translation of the word tlamanitiliztli as (Christian) “policía” in colonial bilingual dictionaries is a paradigmatic example of this kind of processes.⁹⁸ When Friars Andrés de Olmos, Juan Bautista Viseo and Bernardino de Sahagún decided to save the huehuetlatolli – a textual tradition that gathered the norms governing all matters related to the household and literally meant “the ancient word” in Nahuatl – from destruction, they reframed the norms contained therein according to Christian sensibility.⁹⁹ Illustration 8 of the Tlatelolco Codex also shows how dances imitating precolonial styles and traditions were organized in Mexico City to celebrate King Philip II’s ascension to the throne in 1556.¹⁰⁰

Although colonial records must be treated with extreme caution, in order to avoid assuming as pre-Hispanic concepts that might have been either imposed, superposed, or co-invented after the European conquests, they do offer a path for research on precolonial law. In the dictionaries of local languages produced in the early colonial period, for example, several terms referred to the assemblies through which governance and justice were enacted. In the Calepino de Motul, a Yucatec Maya-Spanish dictionary from ca. 1580, the verbs mul-can/mul-than, derived from mul (“something that has been gathered”) and can/than (“conversation”/“word, language, speech”), meant “to deal with some affair between several persons in community.”¹⁰¹ Moreover, mul-tumtah is registered with the meaning of “to decide, to deliberate, or to determine in council, in audience, or between several persons, even though they are only the two of them, to make an agreement, as well as the agreement and decision taken in this manner,” and molay with that of “assembly, congregation, college and gathering.”¹⁰²

It is true that Spaniards were familiar with collegial decision-making, as reflected in the Castilian words junta, ayuntamiento or concejo. Yet, in Maya Yucatec language, emphasis was put as much on the gathering as on the talking. The relevance of oral exchanges in Maya political thought can be inferred by the widespread use of the terms can/than in the substantives that designed a large range of offices relative to both governance and justice.¹⁰³ They also appear in nuch-can/nuc-than, from nuch “to gather things together,” which meant “to confer, to confederate, to ally” and therefore apparently referred to diplomacy.¹⁰⁴ Those expressions were frequently used in early colonial texts written in Maya Yucatec language that narrated how indigenous governors fixed the limits of their town’s jurisdiction in the context of the territorial reorganization imposed by the Spanish authorities. Sentences such as nuchpah ci u canob or hop’i u mulcantoob can, translated as “they gathered to find an agreement” and “they began to agree in community” by Okoshi Harada, can be found in the Códice de Calkiní.¹⁰⁵

Daniel Graña-Behrens has recently pointed out that a “class of distinguished men, and even women” were referred to as “wise men and women” in precolonial times. These individuals were called itz’aat in classic Maya inscriptions from the sixth to the tenth century, and tlamatini in early alphabetic records from Central Mexico; they “served as keepers of the collective memory in royal courts as well as within small-scale political units and communities.”¹⁰⁶ There is little doubt that the Spaniards built on the tradition of precolonial indigenous assemblies when they established indigenous town councils or cabildos. In the translation into Nahuatl of the “ordinances for the indigenous republics” decreed by Viceroy Antonio de Mendoza in the 1540s, an impressive number of Nahua words were conserved to describe the “new” councils’ officials.¹⁰⁷ It is also worth noting that, in precolonial times, those councils gathered in specific edifices, such as the tecpan calli, the house of governance, in central Mexico and, in some cases, there was a continuity in the use of these political and presumably judicial spaces in the early colonial period. According to Rovira Morgado, Andrés de Tapia’s house in Tenochtitlan still served as a tecpan calli when he was appointed governor by viceroy Antonio de Mendoza in the 1530s.¹⁰⁸

The Spanish showed some tolerance toward indigenous forms of political organization because they understood that maintaining these could facilitate the implementation of imperial order. However, they also engaged in an ongoing process of marginalizing a wide range of precolonial indigenous “officials” and reducing their positions. Many members of traditional indigenous councils did not receive any official recognition and were categorized under the general concept of principales, a Castilian word created to describe and, simultaneously, erase the specificities of local rule. According to Graña-Behrens, “Spanish colonialism did not extinguish the concept of the wise one in either culture zone,” but rather made them invisible in the official records.¹⁰⁹ Owen H. Jones has shown, for example, that in Guatemala the chinamitales – although they were not officially recognized by the Spanish authorities – acted as lawyers for K’ichee’ indigenous communities.¹¹⁰

The precolonial indigenous councils might have been more or less specialized, depending on the region and the period. In lámina 3 of the Mapa Quinatzin, four councils were represented inside Nezahualcóyotl’s palace.¹¹¹ Both the pictographic and alphabetic sources suggest that one of these councils could have served as a “legal supreme council.”¹¹² Building on Toribio de Benavente Motolinía’s memorials, Offner described this council as “made up of six sets of two judges responsible for six territories. The judges, located in two rooms, were presided over by two supreme judges and the ruler.”¹¹³ The indigenous chronicler Juan Bautista de Pomar reported that it was composed of twelve judges, “six of royal blood and an equal number of commoners” who had to respect an eighty-day limit for the duration of the cases.¹¹⁴ Offner’s use of the concept of territoriality, however, must be treated with some caution, since in early modern European law jurisdiction was conceived in relation to the people rather than to the territory. A similar situation might have prevailed in precolonial times, as suggested by Okoshi Harada’s investigations of the post-classic Maya cúuchcabal, for example. According to Luz María Mohar Betancourt, the council’s composition might have had to do with ethnic diversity rather than with territoriality.¹¹⁵

Furthermore, the use of Castilian words to describe precolonial law tends to project European concepts onto indigenous ones. In this respect, the distinction between “nobles” and “commoners” in Pomar’s report is interesting. Although indigenous peoples did not lack a social hierarchical order – in the Valley of Mexico, the macehualli or “commoner” category was distinct from the pilli or “nobles” – these concepts were built on values that were erased by the use of Castilian in Pomar’s text. Such semantic substitutions were also accompanied by legal mechanisms that sought to recognize an indigenous nobility according to colonial criteria, even if some of them were said to ensure a supposed continuity with the pre-Hispanic past.¹¹⁶ Giving some room to indigenous law yet reframing it into a new legal and political order were thus simultaneous processes. In doing so, the Portuguese and Spanish Crowns hoped to avoid major social discontent, to consolidate their legitimacy, and to maintain political stability in their imperial realms.¹¹⁷

Indigenous Law in Iberian Imperial Settings

During the early colonial period, the official historic narratives were characterized by the practice of comparing indigenous and European legal orders – and, more opportunistically, contrasting royal justice with an alleged tyrannical precolonial rule. Indeed, they were at the core of the enterprise of legitimizing Iberian imperial authority.¹¹⁸ In the second half of the eighteenth century, the indigenous past and its manifestations in contemporary life in the empire proved to be essential also to the defense of something else: an American identity, known as patriotismo criollo. By adopting the indigenous past as their own, the criollos – but also, in some cases, the European subjects of the Spanish and Portuguese monarchies – were reacting to French or British characterizations of the New World as decadent in a context of increasing imperial rivalries.¹¹⁹ During the colonial period, the indigenous past was important also because the king’s justice was not only supposed to be the expression of natural and divine law, but that it was also expected to be grounded in the general consent of his vassals, including the indigenous ones.¹²⁰

On several occasions, King Philip II of Spain expressed his desire that the new rules imposed on the indigenous peoples would be perceived as “fairer” than the ones they had in precolonial times. In written exchanges with his counsellors in the 1580s, the Spanish monarch manifested his interest in being informed about precolonial rules, languages, territories, and warfare not only in order to select the “customs” that would be either conserved or erased within the colonial order, but also because he was concerned about his own image as a “king of justice.”¹²¹ The fairness of the law was defined in comparative terms (with respect to a precolonial past reconstructed from an imperial present), and this process played a key role in consolidating colonial authority over indigenous peoples.

But the Iberian Crowns also sought a balance between political obedience and labor obligations owed by their indigenous subjects, on the one hand, and a sense of justice and reciprocity, on the other. In this sense, knowledge of indigenous legal culture proved to be useful for finding a degree of compromise with the indigenous elite, for whom a series of privileges were preserved (provided they could prove that their preeminence in society predated Hispanic times), and with the commoners, whose tributary obligations were decreed by law (after inquiries were made to determine the modalities and amount of the tribute they had had to deliver in pre-Hispanic times). Therefore, although indigenous law tended to be either depreciated or marginalized in Portuguese and Spanish official histories, generating knowledge of precolonial normative orders was critical for the purpose of imperial governance. The missionaries, as well as a wide range of civil agents, were required to undertake historical research and what today we would call ethnographic studies on diverse indigenous groups in order to implement efficient policies at the local level.

Knowing according to which rules goods and riches were accumulated and exchanged, how warfare was conducted, on which grounds alliances were forged, how political authority was constructed, exercised and manifested itself, and what the belief systems were, was indeed instrumental in developing efficient strategies in the conquest, governance and evangelization of the New World.¹²² In the 1570s, indigenous law was still at the core of the questionnaires that the Council of the Indies sent to Americas, and the Spanish king’s literate indigenous vassals were encouraged to participate in the drafting of some of the answers, a process that would give birth to the reports known as the relaciones geográficas.¹²³

The question of whether and how this bulk of local knowledge was incorporated into the Iberian monarchies’ legal production in relation to their overseas territories is still under debate today.¹²⁴ The historian José Luis Egío considers that judge Alonso de Zorita’s accounts on the Aztec tributary system tells us not only about “the extensive translation of European or Castilian normativities into the viceroyalty of New Spain,” but also “about the complex ways in which the highly developed Nahua juridical and institutional culture influenced the legal evolution in the Mexican high plateau.”¹²⁵ There is little doubt that the “translation” of indigenous law into colonial textual experience participated in the “localization” of the early modern European law in America. At the same time that data on indigenous law was accumulated, it was also reframed into a new legal language and order in a wide range of texts, including lawsuits.

Colonial courts of justice played an important role in the process of legal knowledge production in the Iberian empires. Recent studies have stressed the need to understand how indigenous peoples interacted with both civil and ecclesiastic courts of justice during the colonial period. They showed that a wide range of indigenous actors engaged with colonial courts as litigants, plaintiffs or witnesses, and that the mechanisms through which imperial justice was administered cannot be fully understood without taking their agency into account. Of particular importance in this context was the way in which indigenous peoples mobilized their legal cultures and their past in order to defend their interests at court and how those interpretations and reformulations of their law gave rise to the emergence of an ever-shifting and contested legal order in the Iberian empires.¹²⁶ In this context, one must bear in mind that the judicial strategies in which indigenous legal concepts were used were designed to defend their authors’ views, interests or sense of belonging.

It is therefore not surprising that, from the sixteenth to the eighteenth century, some narratives on precolonial law aimed to convey criticisms against the colonial authority and that their authors claimed a wider access to political life. The “eighty-day limitation on the duration of the cases” invoked by Pomar might well have been a way of criticizing the length of the legal procedures in the vice-regal courts of justice, which – in cases that involved indigenous people – were supposed to follow a summary procedure.¹²⁷ In Peru, colonial authorities thought that the use of the precolonial indigenous past for political purposes had constituted one of the factors that led to the uprising in the 1780s known as the “Inca National movement.”¹²⁸ After this rebellion, copies of Inca Garcilaso’s Royal Commentaries, which contained information on precolonial law and were widely circulated in the eighteenth century, were confiscated.¹²⁹

Sometimes, the narratives on precolonial law sought to consolidate the prestige of one indigenous city above another or to legitimize a particular indigenous family in the search for political power.¹³⁰ According to Offner, “law occupied a special position in Texcocan history: emphasis on its antiquity and continuity served to legitimize Texcoco’s claim to a superordinate position in valley politics as well as to enhance the majesty of the law of Texcoco under later rulers.”¹³¹ It is also worth noting that, similarly to the lawsuits in which diverse actors were involved, much of the material gathered on indigenous law by royal demand was multiple in authorship, formats, degree of accuracy, and sources selected.¹³² Europeans were not the only ones to participate in these epistemological and political challenges. Several mestizos and indigenous intellectuals produced their own interpretations of indigenous legal orders. These actors’ capacity to travel to and meet in specific places, such as the house of the indigenous town council in Lima, or the Royal court in Madrid, contributed to the configuration of interethnic and transatlantic networks through which information circulated and pressure was put on the Crown.¹³³

Consequently, the frontiers between distinct types of documents were often blurred, since some ideas that appeared in treaties could also be used in the trials filed before colonial courts of justice.¹³⁴ There is little doubt that indigenous peoples and their allies often succeeded to obtain royal decrees that met their demands, thus showing that they played a role in forging the law in the Iberian empires, even beyond the local sphere.¹³⁵ The academic literature focused on these topics largely contributes to complexifying the overall discussions on the polycentric nature of the Iberian empires, the challenges of governing distant territories and diverse populations, and the idea of legal orders being constantly negotiated by a wide range of actors, including the indigenous ones.¹³⁶

The historian Fransico Quijano Velasco has shown, for example, how the Mendicant friar Alonso de la Veracruz used the concept of natural law to describe the indigenous legal order to defend the indigenous people’s “dominion” over their lands, as well as their political legitimacy at the local level. This – among other arguments and motives – led to the institutionalization of the indigenous town councils and the recognition of their jurisdiction.¹³⁷ Because during the Renaissance language was associated with the political ability of the people who spoke it and with the laws according to which they ruled themselves, debates on local languages’ policía became central in the defense of indigenous governance under imperial rule. To put it in other terms, the policía of a language had much to do with the policía of the people who used it. According to Sabine MacCormack, “among Nebrija’s concerns was to show that the Castilian vernacular of which he composed the very first grammatical analysis was as orderly and systematic as Latin.”¹³⁸ In America, several friars applied the same argument to the local languages that they put into artes (grammars). In the dedication of his work to King Philip II, Friar Domingo de Santo Tomás insisted on the “exceptional order and policía” of Quechua and claimed that “such being the language, the people who use it should be counted not as barbarous but as possessing policía.”¹³⁹

Linguistic ideologies, convenient reconstructions of precolonial indigenous past, European traditions of legal pluralism, and the Iberian Crowns’ political interests therefore played a crucial role in many respects: the creation of the indigenous town councils (with jurisdiction over their people at the local level), the recognition of indigenous “customs” (as long as they did not contradict Christian principles) (see Section 3.1), and the use of local languages not only in matters of evangelization (by training priests to become bilingual), but also in court, thanks to the mediation of official interpreters. Like their Spanish counterparts, the indigenous town councils conducted legal inquiries and administered justice in their own languages at the local level. If the case matter was serious, they were obliged to advise the higher authorities thereof and to send them the documentation they had produced. Key sources for investigating the issue of indigenous jurisdiction in the Iberian empires are the royal instructions that were given to indigenous town councils, the rules (actas) which these town councils wrote to organize their internal political life, and the local inquiries that were led by indigenous authorities and were inserted (after being translated into Castilian) as evidence in lawsuits.¹⁴⁰

Although only a few documents of this kind have survived to date, which makes it difficult to understand according to which rules this jurisdiction was exercised, researchers have shown that the members of the Mendicant orders played a crucial role in forging and translating the first royal instructions given to the indigenous town councils into local languages. Moreover, we know that these councils did not hesitate to take advantage of the jurisdictional conflicts that arose between the ecclesiastic and civil authorities, in order to forge opportunistic alliances that enabled them to defend their own interests and jurisdiction.¹⁴¹ As Herzog correctly points out, however, “[T]he existence of a plurality of jurisdictions did not produce distinct legal regimes. What existed instead was a universal common law that had to be localized.”¹⁴² In this sense, the Iberian experience in the Americas differed from its British counterpart, where a neat frontier was drawn between English colonists and indigenous peoples. The latter were not incorporated into the empire under the category of vassals embedded with their own jurisdiction operating within the imperial system of justice but were instead considered as “sovereign nations.” Consequently, diplomacy and treaties, rather than courts, were the instruments through which indigenous peoples and British colonists confronted and negotiated their respective conception of the law.¹⁴³

In the Spanish empire, a comparable situation can only be found in the Chilean frontiers zone, where the relationships with the Mapuche were handled through diplomacy and the mechanism of the so-called parlamentos.¹⁴⁴ Differences between the Iberian and British empires were also due to how land tenure was handled. In the Spanish and Portuguese empires, the monarchs held titles over the Americas, but they did recognize the legitimacy of indigenous people’s dominion over their land, thus enabling them to have access to property through royal bestowal (mercy) or sale. As a result, discussions on precolonial law regarding land tenure were relevant for both the preservation and the incorporation of indigenous relations to land within the new legal order. These discussions were also invoked in trials over land that confronted indigenous peoples with settlers and, in the Valley of Mexico, visual evidence was produced to support the indigenous litigants’ arguments.¹⁴⁵ By contrast, the British Crown considered that empty land was terra nullius, which any sovereign able to settle would be entitled to govern.¹⁴⁶

Closely intertwined with indigenous jurisdiction was the recognition of the legal valence of indigenous peoples’ customs. In a 1555 royal decree, the category of “laws and customs” included not only the norms that indigenous peoples had applied in the past and that were still in use within indigenous communities but also the ones that had been produced after Spaniards arrived. The Spanish king decreed that he would

approve and consider as good your good laws and good customs that you had in the past and that you currently have for your good governance and civility (policía), as well as the ones you have newly made and ordered altogether, provided that we can add what we want and what seems to us convenient for God our lord’s service and ours and for your conservation and Christian civility (policía), as long as they do not prejudice neither what you have done nor the good customs and statutes when they are fair and good.¹⁴⁷

This text demonstrates how the treatment of indigenous “customs” was paradigmatic of imperial ambiguities toward indigenous normative orders. The king’s invocation of “your good laws and good customs” referred to the town councils’ ability to draft their own norms at the local level. However, their content could be modified at any moment to serve God and king, that is to say, according to imperial political rhetoric, to Christianization, and to the conversion of the indigenous people. Furthermore, in court, the recognition of “customs” depended on how successfully the lawyers argued and, above all, on the judges’ decisions, which could be based on a series of imprecise criteria such as the customs’ antiquity, their current social value, and the conflicts in which they were invoked.¹⁴⁸ The invocation of these customs in court could therefore give rise to unpredictable jurisprudence. In some cases, the settlers’ lawyers appealed to this concept to defend their own practices, such as the use of indigenous porters called tamemes for transporting the tributes, which indigenous peoples sought to abolish.¹⁴⁹

Local Languages as an Arena for Ever-Shifting and Contested Normative Orders

Language also played a key role in enforcing or contesting legal orders in the Iberian empires. In this context, it is important to note that the use of local languages was tolerated in court. Lawyers and interpreters who were tasked with representing indigenous people or translating their statements before the judges were essential to these dynamics. Discussions around unequal access to royal justice for indigenous persons in comparison with Spaniards and the subsequent decision to consider them as personae miserabiles were decisive for the appointment of defensores de indios, lawyers specialized in representing the indigenous people in the colonial courts of justice.¹⁵⁰ As for the interpreters, as bilingualism was not a general practice – neither among the judges nor among the indigenous people – their presence in court was required. In the Spanish empire, abuses committed by some interpreters – and the dramatic consequences for the indigenous peoples – led to the institutionalization of this position. As early as 1540, official interpreters were appointed for the court of Mexico. They had to follow a series of rules and were regularly inspected by higher officials. Eventually, the same norms would be used in other jurisdictions as the Spanish Crown expanded its control over other territories.¹⁵¹

Although in Brazil interpreters did not receive official recognition until the nineteenth century, recent scholarship has highlighted the key role that the so-called linguas played during the entire colonial period.¹⁵² Along the imperial frontiers, translating and interpreting played a different role. This is exemplified by the case of the Mapuche, who fulfilled a function similar to that of the intermediaries along the Spanish-Arab frontier in the context of the late medieval Reconquista.¹⁵³ Both interpreters and lawyers were situated at the intersection between the indigenous peoples and the judges. They not only articulated diverse regimes of justice but also brought to the fore different expectations of what justice meant for the actors engaged with the colonial justice system. The images, concepts, and categories that languages convey were, indeed, instrumental to the translation of normative orders in the Iberian empires (and probably also in pre-Hispanic America).¹⁵⁴

The linguistic work on local languages undertaken by the members of the Mendicant orders largely contributed to the imposition of new legal concepts on indigenous peoples. The friars introduced loanwords and neologisms, and they re-signified a selection of indigenous words so that they could fit well with Christian concepts. Because – as shown by Thomas Duve in Section 3.2 of this volume – in early modern European legal culture, ecclesiastical and civil law were intertwined, the friars’ linguistic accomplishments had an impact not only on indigenous religious beliefs but also on their view on governance, justice, and law. The colonial dictionaries and grammars, as well as the sermons, catechisms, and confessionals were vivid manifestations of the conceptual translation work performed by these friars on the indigenous languages.¹⁵⁵ The friars, helped by indigenous specialists, were also in charge of translating the New Laws of 1542 as well as the first royal ordinances for the indigenous town councils into local languages, and they used linguistic strategies to introduce European legal concepts to indigenous languages. Similarly, the struggles between early modern and revolutionary conceptions of the law manifested themselves in indigenous languages during the Spanish–American wars of independence.¹⁵⁶

Nonetheless, as Capucine Boidin and Angélica Otazù Melarejo put it, drawing offensive parallels “between Amerindian language and Amerindian identity and culture” must be set aside to avoid an essentializing approach to indigenous lexicography.¹⁵⁷ Equally problematic would be the use of categories created by colonial agents, for example, the aforementioned principales, to describe indigenous realities, as that would ignore the fact that these categories largely contributed to rendering some members of indigenous councils invisible. Although the use of such terms did not mean that these actors completely disappeared during the colonial period, it deprived them of official recognition and subjected them to indigenous governors’ arbitrary decisions regarding their presence at the meetings of town councils. Conversely, a Castilian loanword that appears in a text written in a local language might convey different indigenous representations perfectly.¹⁵⁸ Colonial texts, either in Castilian or in local languages, must thus be understood as spaces of “cultural oscillation,” in which both European and indigenous views could be entangled.

According to José Antonio Mazzotti, when Inca Garcilaso wrote of the “sun of justice” in the fragment of the Royal Commentaries mentioned earlier, he referred to the Christian God, but also suggested “meanings within the context of an Incan imagery.”¹⁵⁹ The fact that “the medieval Christian church began to wield the image of the Sol Iustitiae in an effort to replace the pagan Sol Invictus of the Roman Empire” may not have gone unnoticed by Garcilaso.¹⁶⁰ The inclusion of Quechua words as well as the comparisons between Latin and Quechua and between the Roman and the Inca empires were also part of a rhetorical strategy intended to defend the indigenous jurisdiction under the imperial rule.¹⁶¹ To put it differently, language was an arena in which legal concepts were constantly negotiated through the mediation of specialized agents, whose linguistic work depended on their sociopolitical position. From this perspective, the use of local languages in colonial courts of justice might have contributed to creating loci in which diverse interpretations of the law could be expressed and, eventually, discussed thanks to the cultural and linguistic mediation of interpreters.

Glave Testino has shown that the Quechua word landi, which among Andean peoples had a meaning close to the ideas of alienation and slavery, was used by the interpreter of the corregidor of Cuzco (a high-ranking judicial official in the viceroyalty of Peru in the 1560s) to refer to the “perpetuity” of the encomienda, a royal grant given to the conquerors in the form of indigenous tributes. For such a translation, which contributed to fuel the indigenous opposition to a political project that would have undermined their interests, the interpreter was prosecuted in a trial in which the issue of “legal translation” proved to be crucial.¹⁶² Although discussions ultimately took place in Castilian, thus enhancing the asymmetric coexistence of different legal orders that characterized the imperial situation, the relevance of using local languages in the judicial sphere, and the weight of some indigenous legal concepts in political debates must not be underestimated.¹⁶³ Their use in court must be interpreted in the light of ideologies of language, power relationships, and cultural oscillations.¹⁶⁴

Final Comments

The main challenges in the study of indigenous law are not only the disparity of the sources available depending on the groups, areas, or times under consideration but also their diversity. They range from material vestiges, ethnographic surveys, historical narratives, iconographic and pictographic documents to dictionaries, and notarial and judicial texts. In general, the exclusion or inclusion in the analysis of specific sources has been intertwined with the conception of law that prevailed in the writing of legal history and the place that indigenous people were expected to occupy in society. Among the factors that have contributed to change the history of indigenous law over the last decades were reflections on the multiple actors who engaged with the production of legal knowledge; the consideration of the local and global dynamics in which legal knowledge emerged in an Atlantic and imperial perspective; and the criticism of the use of European concepts in describing the indigenous peoples’ normative orders.

These changes have led scholars to take into account the historical processes through which different precolonial legal orders were intertwined before the Iberian conquests. From this perspective, the contact with European law can be placed within a long history of contested and ever-shifting legal accommodations. It also enables an understanding of how indigenous peoples experienced these negotiations according to their own legal culture. Furthermore, it is crucial to acknowledge the fact that precolonial law did not survive Iberian rule without alteration, but rather that it was subjected to complex changes following the engagement by a wide range of actors with law at different levels. The exercise of the indigenous town councils’ jurisdiction, the engagement with the courts of justice, the sending of claims, memorials, and agents throughout the empire were avenues through which indigenous peoples participated in forging Iberian imperial law.

Obviously, this must not supersede the need to take into account the asymmetries in the power relations and to discern distinct degrees of agency when analyzing these questions. When indigenous, mestizos, or European peoples, who all occupied diverse sociopolitical positions, reported on indigenous law, they produced legal knowledge, in the sense that they situated indigenous law within a new linguistic, social, epistemological, and judicial setting. In this sense, approaches focused on local languages, translation, and linguistic policies help us go beyond the model of a dominant legal culture spreading and local normative orders resisting or disappearing, and take us closer to the negotiation, disputes, and misunderstandings that underpin the production of law in the Iberian empires.