Empire of Law and Indian Justice in Colonial Mexico (review)

The story that Brian Owensby tells us is one of active engagement and constructive reaction instead of surrender in front of a colonial power. The protagonists are the indigenous people of seventeenth-century Mexico. So, we may ask, what is new? In truth, the creative response of the native people of Mexico to the Spanish presence has already been the topic of many books. However, this book aims to see this relation through the lens of the law—the legal procedure itself and what the indigenous subjects understood or made of it. Focusing on such matters rather than using lawsuits as sources to get to details about colonial life is quite rare, although it has been attempted before (the author acknowledges his debt to Woodrow Borah, for one), so the perspective is interesting and refreshing.

With an eye to jurisprudence and legal texts, Owensby uses different types of legal cases to show how indigenous people "helped to forge a powerful vocabulary of legal meaning" (p. 8), the leitmotif of the book. The chapters are organized around some key ideas, illustrated through the use of exemplary lawsuits. After the stage is set, the first main concept is that of protection, examined through amparo petitions (chapter 3), followed by possession, or the idea of rights over land (chapter 4), and liberty, meaning freedom to establish labor relations and not to be abused through them (chapter 5). Other key concepts are guilt and self-governance, or the fact that some cases reveal a struggle within the community that may have disrupted or at times secured its unity (chapters 6 and 7). Last, the book ends with a full-scale examination of a case, rather than an idea, dissecting the famous rebellion of Tehuantepec of 1660-1661 from the point of view of concern over the law.

The picture is surely complex, since native people may have understood ideas such as protection, property, governance, and what lawmakers and authorities were supposed to do about them in ways different from the Spanish. I would add that individuals of the time, indigenous or not, may have had differing conceptions of these ideas, fragmenting them into a myriad of views that might be difficult to reconstruct. There is, however, a unifying message: whatever the indigenous people of New Spain thought of the law, their propensity to litigate was not a sign of weakness and decay; they did it eagerly since they believed in it and in its power to redress the injustices brought on by the colonial situation. In doing so, they contributed crucially to the creation of a legal practice and discourse that was quintessentially new, not just a re-enactment of Spanish concepts. Such is Owensby's conclusion, and I can certainly agree after following him through all the fascinating and at times dizzying legal cases. I am less sure about the idea that law is "a means to 'reclaiming the political' for the colonial period" (p. 11), but perhaps my doubts about the need to use law to get to the political belong to another realm of discussion.

Some chapters work better than others. Those on protection and possession (chapters 3 and 4) are the most effective, while the chapter on the Tehuantepec rebellion falls a bit out of the structure and methodology of the book. My reading may also depend on the fact that it is problematic to link an example from a peripheral area to the legal views of indigenous groups in the central plateau. Further, some interpretations of Nahuatl terms would gain by moving away from Alonso de Molina's definitions to an in-context translation and leaving behind the influence of Spanish terms (I am thinking of the use of village to render altepetl, clearly affected by the Spanish pueblo). That said, the book gives us a wealth of interesting legal cases and thought-provoking analysis, and it is well worth reading.