Crime and the Administration of Justice in Buenos Aires, 1785-1853 (review)

This work is the author's revised 1997 dissertation presented at the University of Arizona, and the English translation of his well-received book, Dentro de la ley, todo: La justicia criminal de Buenos Aires en la etapa formativa del sistema penal moderno de la Argentina (2001). It is the story of the slow pace through which the Argentine judicial system underwent change. It is also a study of institutional negotiations and jockeying for position in post-colonial Argentina in which one of the few certainties was the uncertain political environment.

One of the more salient contradictions in the gestation of the republican state throughout much of Spanish America involves the rhetoric of a radical distancing from the colonial system of governance, on the one hand, while continuing to adhere to a significant array of its foundational legal principles, on the other. The case of Buenos Aires offers no exception. In this well-researched study, Barreneche provides a detailed and comprehensive review of the institutional factors and political conditions that stymied innovation or the creation of an independent judiciary, keeping it, instead, as an arm of other objectives and strategies designed by political and organizational actors, sometimes ideological, sometimes political, and at other times, merely bureaucratic.

After achieving independence, derecho indiano lacked "the realities of everyday life" (p. 27) which Barreneche accurately notes has been usually ignored by legal historians, while social historians, for their part, have ignored the importance of the legal texts. Barreneche aims to act as a bridge between these two wings of scholars. He notes that the deep social stratification found in Buenos Aires during the late colonial period was reconstituted in criminal law, reflecting the coexistence of privileged with more general norms in resolving crimes. The colonial criminal justice system was designed primarily as a social control mechanism in which balance between mercy and punishment was compromised toward the close of the eighteenth century by both an increasing fear of social upheaval and growing needs associated with urban improvements; thus, for example, appeals to the audiencia could either reduce or increase the terms of the original punishment, which could include forced service in public works projects.

Unlike wealthier and more populated areas, such as Mexico City, Buenos Aires lacked the personnel to staff different judicial layers, including intermediate and lower tribunals, which, Barreneche argues, facilitated greater consensus among judicial officials and individuals. By contrast, the power of the alcalde in Buenos Aires was much more significant, giving local officials extraordinary involvement in the supervision of criminal justice cases and even in sentencing convicted criminals. The tradition of locally influential agents in the criminal justice system outlasted the colonial period, lasting well into the nineteenth century. The resulting methodology was characterized by the frequent bypassing of judges through actions taken by the executive along with its surrogates, principally, alcaldes and the police. Until codification of the criminal justice system in 1886, multiple and varied responses to similar situations were common, depending on the social circumstances of the participants and the political exigencies of the moment.

The Buenos Aires police was given unusual deference: executive authorities gave priority to police forces in matters of public safety, including investigations and even allowing for recommendations regarding the treatment of the accused. Under such circumstances, judiciary independence was impossible, as police interfered between civil society and the magistrates. The relative standing of the judiciary can be gleaned from the city's budgets, which were rarely up to any institution's needs, but which might appear especially neglectful of judiciary staffing; salaries remained low and lawyers were reluctant to take up magistrate positions, which could remain vacant for years.

Barreneche rightly points out that nineteenth-century republican principles, including especially the separation and independence of the judiciary branch of government, were sacrificed to political demands for stringent social control in Buenos Aires, an emblematic feature of the turmoil experienced...