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.

Acosta Arcarazo on Open Borders in the Nineteenth Century: Constructing the National, the Citizen, and the Foreigner in South America @BristolUni

Diego Acosta Arcarazo, University of Bristol, has published Open Borders in the Nineteenth Century: Constructing the National, the Citizen and the Foreigner in South America as Robert Schuman Centre for Advanced Studies Research Paper No. 2017/46.

This working paper describes and explains the historical origins of the division between the national and the foreigner in South America. In the early nineteenth century, all the previously Spanish possessions in South America as well as Brazil achieved independence. With this new freedom, countries turned their attention to asserting their statehood through the delineation of three constitutive elements: government, territory and population. The new governments had to define who were going to be considered as nationals, citizens and foreigners, and the rights that pertained to each of these categories. These countries were all concerned with attracting new settlers and very early on introduced constitutional provisions on open borders and equal treatment for foreigners. White, male Europeans were the principal addresses of open borders provisions in an effort to entice them to settle in territories presented as empty to the exclusion of indigenous groups, bring new industries, and contribute to the whitening of mixed race populations. Whilst weak statehood came with independence, forming nations was a much longer process and States used migration and citizenship policies as tools to define nationhood.

Download the article from SSRN at the link.

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.