Bastias Saavedra on Jurisdictional Autonomy and the Autonomy of Law

Manuel Bastias Saavedra, Max Planck Society for the Advancement of the Sciences - Max Planck Institute for European Legal History, has published Jurisdictional Autonomy and the Autonomy of Law: End of Empire and the Functional Differentiation of Law in 19th-Century Latin America at 26 Rechtsgeschichte/Legal History 325 (2018). Here is the abstract.

This contribution discusses the collapse of the Iberian Empire and the transformation of legal regimes in 19th-century Latin America. While most of the literature on this period centers on the process of state-building and the reform of legal institutions, my discussion will focus on the important changes produced in the form of law according to Luhmann’s theory of functional differentiation. The main argument is that systems theory can provide a re-evaluation of the history of law in the 19th and 20th centuries if one focuses on the idea of the autonomy of law. I argue that this way of reading the functioning of law is analogous to the legal historical re-evaluation of early-modern Iberian legal regimes through the idea of jurisdictional autonomy. Taken together both ways of understanding autonomy in legal observation direct our attention to shifts in law that go beyond the question of empire and nation-state building.

The full text is not available from SSRN.

Changes in Indigenous Marriage and Indigenous Marriage Customs Before and After the Council of Trent

Ana de Zaballa Beascoechea, Universidad del Pais Vasco, is publishing El Matrimonio Indígena Antes Y Después De Trento: Del Matrimonio Prehispánico Al Matrimonio Cristiano En La Nueva España (Indian Marriage Before and After the Council of Trent: From Pre-Hispanic Marriage to Christian Marriage in New Spain) in Tridentine Marriage in a Global Perspective (Benedetta Albani, Paolo Aranha, and Michela Catto, eds.; Frankfurt am Main: Max Planck Institute for European Legal History, 2016). Here are the abstracts (Spanish and English).

Spanish Abstract: En este artículo se analizan los cambios en el matrimonio indígena, la aceptación o rechazo de costumbres prehispánicas, antes y después del concilio de Trento. Así mismo se estudia hasta qué punto fue asimilado o rechazado el matrimonio cristiano entre los indios. Para ellos se revisa, no sólo el sacramento en sí, sino también algunos hábitos y costumbres, vínculos sociales, preferencias y prácticas relacionadas con el matrimonio cristiano. English Abstract: This article describes the changes in the Indian marriage, the acceptance or rejection of pre-Hispanic customs, before and after the Council of Trent. Also studied it was how assimilated or rejected Christian marriage among Indians. For them, not only the sacrament itself, but also some habits and customs, social links, assumptions or preferences, and practices related to Christian marriage, over pre-Hispanic habits is reviewed.

Download the essay (Spanish) at the link.

Gender Justice and Legal Pluralities

Gender Justice and Legal Pluralities: Latin American and African Perspectives (Rachel Sieder and John Andrew McNeish eds.; Routledge Publishing, 2012) is forthcoming in paperback next month ($49.95 US).  Here is a description of the contents from the publisher's website.

Gender Justice and Legal Pluralities: Latin American and African Perspectives examines the relationship between legal pluralities and the prospects for greater gender justice in developing countries. Rather than asking whether legal pluralities are ‘good’ or ‘bad’ for women, the starting point of this volume is that legal pluralities are a social fact. Adopting a more anthropological approach to the issues of gender justice and women’s rights, it analyzes how gendered rights claims are made and responded to within a range of different cultural, social, economic and political contexts. By examining the different ways in which legal norms, instruments and discourses are being used to challenge or reinforce gendered forms of exclusion, contributing authors generate new knowledge about the dynamics at play between the contemporary contexts of legal pluralities and the struggles for gender justice. Any consideration of this relationship must, it is concluded, be located within a broader, historically informed analysis of regimes of governance.

European and U. S. Influences on Latin American Administrative Law

Ricardo Perlingeiro, Universidade Federal Fluniense (UFF), has published A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus US Influence. Here is the abstract.

From the perspective of US influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the US unified judicial system and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the experiences acquired in the United States and Continental Europe.

The article contents: Introduction. 1 Administrative jurisdiction: judicial, non-judicial and hybrid models. 1.1 Constitution of Cadiz of 1812. Junta Grande of 1811 (Argentina). Belgian Constitution of 1831. Reglamento para el Arreglo de la Autoridad Ejecutiva Provisoria de Chile (1811). Law of 16 and 24 August 1790. Ley de Santamaría Paredes. Administrative Court of the Land of Baden of 1863. 1.2 Lack of independence of French administrative litigation and the unified judicial system in Latin America in the 19th Century. La justice déléguée of 1872. 1.3 The unified judicial system in Latin America in the 19th Century and questions of governance. 1.4 The specialization of jurisdiction in Europe and the emergence of administrative law. 1.5 The evolution of the unified judicial system in the USA: Interstate Commerce Commission (ICC) of 1887. 1.6 Models of administrative jurisdiction in Latin America in the 19th and 20th Centuries. 1.6.1 Hybrid (judicial and non-judicial) administrative jurisdiction: Honduras, Brazil. 1.6.2 Non-judicial administrative jurisdiction: Bolivia, Panama, Dominican Republic, Colombia, Guatemala, Ecuador, Uruguay, Mexico. 1.6.3 Dualist judicial jurisdiction: Colombia, Nicaragua, Panama, Ecuador, Guatemala, Dominican Republic. 1.6.4 Monist judicial jurisdiction (uninterrupted period): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Brazil. 1.6.5 Monist judicial jurisdiction (limited period): Colombia, Guatemala, Dominican Republic. 1.6.6 Monist judicial jurisdiction (intermittent periods): Nicaragua, Honduras, Ecuador, Panama, Bolivia. 1.6.7 Monist judicial jurisdiction (currently in effect and having specialized entities): Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Bolivia, Brazil, Panama, Nicaragua, Honduras and Ecuador. 1.7 Developmental and comparative framework of the independent administrative jurisdiction under the Latin American Constitutions. 2 Administrative decisions preceded by due process of law. 2.1 Signs of US due process of law in Latin America: The 5th (1791) and 14th (1868) Amendments of the US Constitution. 2.2 Origin of due process of law: Magna Carta of 1215, Liberty of Subject Act (28 Edward 3) of 1354, Observance of Due Process of Law Act (42 Edward 3) of 1368. 2.3 Right to a fair trial on the international scene: US Bill of Rights of 1789, Universal Declaration of Human Rights of 1948, European Human Rights Convention of 1950, International Covenant on Political and Civil Rights of 1966, African Charter on Human and Peoples’ Rights of 1981, Charter of Fundamental Rights of the European Union of 2000, American Convention on Human Rights of 1969. 2.4 Due process of law in Latin American laws and constitutions. 2.5 Case law of the European and Inter-American Courts of Human Rights: independence and impartiality in non-judicial administrative proceedings, and due process of law prior to administrative decisions. 2.6 Distinction between the judicial processo administrativo, non-judicial processo administrativo and procedimento administrativo. 2.7 Administrative due process prior to decisions by administrative authorities in Latin America. Closing considerations.

The full text is not available from SSRN. 

A Review of Brazilian Sociolegal Studies

José Reinaldo Lopes, University of Sao Paulo, Faculdade de Direito, and Roberto Freitas Filho, Uniceub, have published Law and Society in Brazil at the Crossroads: A Review at 10 Annual Review of Law and Social Science 91 (2014). Here is the abstract.

This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.

The full text is not available from SSRN.  

Comparative Latin American Law

José Calvo González, University of Malaga, has published "Justianiano en Latinoamérica. Una crónica sobre Técnica legislativa en Derecho comparado", in Cuadernos Electrónicos de Filosofía del Derecho [CEFD] (Universitat de València), n.24 (2011), pp. 22-36. Here is the abstract.

The text reviews the initiatives and development policy from the legislative power in Argentina and Nicaragua have forged in recent collections of their respective legal systems. Such compilations are the Argentine Legal Digest and Nicaraguan Legal Digest and have responded to principles early clearance, inventory, harmonization, normative consolidation and unification of legislation. The author is interested in the achievements of his legislative program of technical development, as well the extent of such approaches in legal and political terms of contribution to legal security and strengthening the rule of law.

Download/read the text (in Spanish) at the link.