Wednesday, May 16, 2012

Mirow on Spanish Colonial Law and the Constitution of Cádiz

Matthew C. Mirow, Florida International University College of Law, has posted Pre-Constitutional Law and Constitutions: Spanish Colonial Law and the Constitution of Cádiz, which is forthcoming in volume 12 of the Washington University Global Studies Law Review.  Here is the abstract:
The Constitution of Cádiz or the Spanish Constitution of 1812 is presently undergoing world-wide and extensive study because of its bicentennial and because of its important place in the development of liberal constitutionalism in Europe and Latin America. It also played a role in the independence of many Latin American republics which will celebrate their bicentennials over the next decade.

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: (1) as general knowledge related to the Americas and their institutions; (2) as a source for providing a particular answer to a specific legal question; and (3) in the debates about how grounded the Constitution is in historical sources and laws, its historicity. Although the example is drawn from Spanish colonial law and the Constitution of Cádiz, the general methodology will likely be appealing to others working in the fields of comparative constitutional law and constitutional history.

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