Latin American Law: A History of Private Law and Institutions in Spanish America (review)

This book provides scholars with a valuable introduction to an ample theme: private law and institutions in Latin America from colonial times to the present. Its objective is to serve as a foundation for further research, a guide that familiarizes scholars with the discussions and the bibliography relevant to each subject. The book is organized in a chronological fashion: Part I deals with the colonial period; Part II with independence and the nineteenth century; and Part III with the twentieth century. In each section the author deals with certain basic areas of "private law": statutory law; courts and the judiciary; the legal profession and its education; the sources of the law; personal status (civic liberties); landed property and inheritance. These are preceded by brief introductions and followed by an even shorter conclusion. The bibliography is quite comprehensive and useful. For those unfamiliar with legal terminology in the region, a glossary is also provided.

The author makes certain generalizations about each period. In the nineteenth century the new republics, rejecting Spanish colonial laws, rapidly adopted European models of legislation. Codification assisted the project of nation-building and helped leaders to consolidate political support. Despite great changes in personal status (the abolition of privilege), private laws related to property and inheritance changed little after independence. Due to scarce resources and political instability, codification of commercial and civil law had to wait until the late nineteenth-century in most countries. The twentieth century was dominated by constitutionalism. Intellectual authority shifted from Europe to the United States, particularly after World War II. Countries introduced divorce procedures, women acquired voting rights, and labor protection laws were passed almost everywhere. New mechanisms for the protection of constitutional liberties (such as "tutela" and "amparo") and alternative means of dispute resolution were implemented only in the last two decades of the century.

The book accomplishes its objectives exceedingly well. As a work of reference the book will prove quite useful in classes or seminars. The discussion of colonial legislation and judicial practices is clear and quite comprehensive. Remarkably interesting is the treatment of the education of lawyers in the different periods. The chapter on codification, focusing on Sierra, Bello and Vélez Sársfield, is one of the finest. Especially well structured and instructive are the chapters devoted to commercial and inheritance laws. Other areas appear less developed. Examples about legal developments in Mexico are more abundant than those in the rest of Latin America. Within the discussion of the twentieth century, the reforms of the period 1980-2000 overshadow reforms implemented during the rest of the century. The coverage of land reform is also uneven, with the Bolivian case receiving only a passing comment. More attention might have been devoted to the discussion of procedures in civil and commercial courts. Though concerned with "private law," the author allocates a substantial space to describe government institutions and the relationship between politics and the justice system. A historian reading this book will be at the same time impressed by its accomplishments (the ability to summarize a multiplicity of debates and bibliography) but also discouraged by its thematic dispersion which, at times, leads into unsupported generalizations or inadequate treatment of certain issues. The main difficulty stems from the radical heterogeneity of the subject matter. Issues such as marriage, inheritance, commerce, insurance, copyrights, land reform, court hierarchies, caudillos, and constitutions stand on the same level, as if subjected to a Borgesian order. They are all part of the same great constellation called "private law," an entity so all-encompassing that defies understanding. Can one make a history of such a heterogeneous subject matter? What principles are at work in the constitution of this subject matter? How could one summarize and account for the changes experienced for such vast entity?

In the presence of such heterogeneity, it is difficult to narrate, much less explain, general tendencies such...