Edwards, "Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic"

No pun intended, I'm not sure how we overlooked the publication of Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic (University of Alabama Press, 2020), by Erika Denise Edwards (University of North Carolina, Charlotte). It has now won at least two significant awards: the Association of Black Women Historians 2020 Letitia Woods-Brown Award for the best book in African American Women’s History and Western Association of Women Historians Barbara “Penny” Kanner Award, which honors scholarship that "illustrates the use of a specific set of primary sources (diaries, letters, interviews etc.)" (h/t @ABWHTruth). A description from the Press: 

Argentina promotes itself as a country of European immigrants. This makes it an exception to other Latin American countries, which embrace a more mixed—African, Indian, European—heritage. Hiding in Plain Sight: Black Women, the Law, and the Making of a White Argentine Republic traces the origins of what some white Argentines mischaracterize as a “black disappearance” by delving into the intimate lives of black women and explaining how they contributed to the making of a “white” Argentina. Erika Denise Edwards has produced the first comprehensive study in English of the history of African descendants outside of Buenos Aires in the late colonial and early republican periods, with a focus on how these women sought whiteness to better their lives and that of their children.

Edwards argues that attempts by black women to escape the stigma of blackness by recategorizing themselves and their descendants as white began as early as the late eighteenth century, challenging scholars who assert that the black population drastically declined at the end of the nineteenth century because of the whitening or modernization process. She further contends that in Córdoba, Argentina, women of African descent (such as wives, mothers, daughters, and concubines) were instrumental in shaping their own racial reclassifications and destinies.

This volume makes use of a wealth of sources to relate these women’s choices. The sources consulted include city censuses and notarial and probate records that deal with free and enslaved African descendants; criminal, ecclesiastical, and civil court cases; marriages and baptisms records and newsletters. These varied sources provide information about the day-to-day activities of cordobés society and how women of African descent lived, formed relationships, thrived, and partook in the transformation of racial identities in Argentina.

Praise from reviewers:

“Powerfully, this book reinterprets the interrelated constructs of whiteness and nation in Argentina from the perspective of African-descended women. In so doing, Hiding in Plain Sight illuminates the gendered languages and initiatives that made possible black women’s (and their children’s) assertions for legal and social belonging—even as these choices entailed a discursive downplaying of blackness in favor of performing Spanish and indigenous identities. A noteworthy contribution to African diaspora as well as women’s and gender studies, Edwards’s book makes the study of both households and the interior city of Córdoba indispensable to thinking about modern Argentina.” —Celso Thomas Castilho,
 
“Edwards boldly argues that African-descended women in Córdoba employed their clothing choices, motherly responsibilities, and positions as concubines to transform black identities into white privilege. By exploring intimate struggles, Edwards effectively revises Argentina’s national story of black invisibility to a narrative of black agency of the eighteenth and nineteenth centuries.” —Rachel Sarah O’Toole

More information is available here.

-- Karen Tani

Legal and Historical Narratives: A Brazilian View

 [We have the following announcement.  DRE]

WEBINAR: "Legal and Historical Narratives: A Talk with Lira Neto" – 03 May 2021, 10 AM, GMT-3 – Unifacisa, Campina Grande, Brazil – Free of charge

Brazilian historian Lira Neto gathers with jurists to discuss research experiences

Brazilian university center Unifacisa, in Campina Grande, is promoting a debate on “Legal and Historical Narratives” with laureate historian Lira Neto and jurist Marcílio Franca, who is an arbitrator for Mercosur, WIPO and the Court of Arbitration for Art (CAfA). The webinar is hosted by Henrique Lenon, Professor of Legal History.
 
The conference is free of charge and will be transmitted live in Portuguese, but requires previous registration [here].

Lira Neto has published several laureate books in Brazil, including biographies of former Presidents Getúlio Vargas and Castello Branco, musician Maysa and the famous religious leader Cícero Romão of Ceará.

As recently as February, Lira Neto released “Arrancados da Terra”, which depicts the persecution of Jews in Europe and Colonial Brazil during the 17-th century. The author deals with legal proceedings of the Holy Inquisition kept in Portugal, with political and religious issues of the Netherlands, with the Portuguese-Dutch dispute to control Northeastern Brazil and the final destination of then persecuted Jews: New York City.

 “The conference intends to provoke law students and professionals to understand how historians research, reflect and write History”, says Henrique Lenon, who holds a PhD in International and Comparative Law from the University of São Paulo and teaches Legal History and Legal Anthropology at Unifacisa.

Service
Webinar: "Legal and Historical Narratives: A Talk with Lira Neto"  
When: May 03, 2021, at 10 AM (GMT-3)
Language: Portuguese
Registration
Live event, free of charge

A French-Brazilian Legal History Webinar Series

[We have the following announcement of the online workshop series, French-Brazilian Chair of Legal History 2021 organized by José Reinaldo de Lima Lopes (University of São Paulo) and Nader Hakim (University of Bordeaux).  DRE.]

 

Details after the jump.

Delaney and Ponsa-Kraus on Amadeo and the Argentinian Constitution

Erin F. Delaney, Northwestern University Pritzker School of Law, and Christina D. Ponsa-Kraus, have posted Beholding Law: Amadeo on the Argentine Constitution, the introduction to Santos P. Amadeo, Argentine Constitutional Law (1943) (Academia Puertorriqueña de Jurisprudencia y Legislación), which is forthcoming online in 2020:

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system—identifying Argentina’s as the provinces, the federal capital, the national territories, and the central national government—the book mentions Argentina’s territories only in passing. The contrast is intriguing because Amadeo himself was from the U.S. territory of Puerto Rico. Why, then, as his paper grew into a book-length project, did the subject of the Argentine territories shrink to a passing mention? We don’t know the answer, but we offer our informed guess, noting the fraught relationship between comparativism and empire.

--Dan Ernst

Max Planck Studies in Global Legal History of the Iberian Worlds

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

The Max Planck Institute for European Legal History has a new publications series: Max Planck Studies in Global Legal History of the Iberian Worlds (MPIW) will present legal historical research on the Iberian worlds of the early modern and modern periods. Its volumes will cover not only regions that were part of the Spanish and Portuguese empires or stood in direct contact with them, but also examine the globalisation and localisation of normative knowledge throughout Europe, America, Asia and Africa. A particular emphasis lies on the investigation of cultural translation processes and phenomena of multinormativity. The series, edited by Thomas Duve, is published in Open Access, and in print as a hardcover edition by Brill.

The first volume now published - Knowledge of the Pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America - is devoted to a long underestimated genre of normative literature that was of great significance for the formation of normative orders in early modern Ibero-America: small handbooks written for practical use. These could contain legal texts, but moral theological works and confession manuals were also among these widely used media, which were particularly important for the everyday practices of norm production.

The definition of this genre, as well as its function, dissemination and use from the 16th to the 18th century are the focus of the eleven contributions to this volume, which brings together the results of a collaborative research project (SFB 1095). A number of contributions focus on the methods of norm generation in the early modern period, in particular the role of pragmatic literature in these processes and the practices of epitomisation characteristic of this genre. The volume also includes studies on important authors (such as Martín de Azpilcueta) and on the circulation of books and knowledge. Further chapters analyse the presence and use of pragmatic literature in regional contexts from Mexico to South America.

The authors, almost all of whom are members of the MPIeR, come from Argentina, Brazil, Colombia, Germany, Italy, Peru and Spain. The volume, edited by Thomas Duve and Otto Danwerth, has just been published in Open Access; the hardcover version will become available at the end of April.  More information on the website of the MPIeR or on brill.com.

Essays on Fascist, Nazi and Authoritarian Criminal Law

Ideology and Criminal Law: Fascist, National Socialist and Authoritarian Regimes, edited by Stephen Skinner and published by Hart, is now available:

With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers – especially the power to punish and to determine the boundaries of permissible conduct through criminal law – it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.

–Dan Ernst

The Passing of António Manuel Hespanha

[We have the following announcement from the Directors of the Brazilian Institute for Legal History.  The citation for Professor Hespanha when he was named an honorary fellow of the American Society for Legal History is here.  DRE.]

The IBHD – Instituto Brasileiro de História do Direito (Brazilian Institute for Legal History) regrets to inform that Professor António Manuel Hespanha, honorary fellow of the IBHD and of the American Society for Legal History, passed away on July 1, in Lisbon. Professor Hespanha, one of the most influential contemporary European legal historians, revolutionized the field of Lusophone legal history. Through intense friendship and intellectual exchange for the past 20 years, Professor Hespanha was crucial in the construction of the field in Brazil. With sadness, the IBHD reaffirms its commitment to the memory of Professor Hespanha, who will continue to be our greatest source of inspiration.

Ecclesiastical Institutions in Colonial South America

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

With "Normatividades e instituciones eclesiásticas en el virreinato del Perú, siglos XVI-XIX", edited by Otto Danwerth, Benedetta Albani, and Thomas Duve, the Max Planck Institute for European Legal History presents the newest publication in its Open Access book series Global Perspectives on Legal History.

Ecclesiastical institutions and actors played key roles in the formation of normative orders in early modern Ibero-America. Their importance, which has already been illustrated by an earlier volume on New Spain (GPLH 5, published in 2018), is now further corroborated and explored in case studies focusing on the viceroyalties of Peru and of Río de la Plata.

The eight chapters of this Spanish-speaking volume deal with a diversity of themes relating to both urban and rural locations in what is now Peru, Bolivia, Argentina and Chile. They examine the ecclesiastical legislation of Toribio de Mogrovejo, explore the role of legal experts in canon law litigation, compare the activities of Jesuit missionaries in Austria and Peru, explain the life of the nuns in the Monasterio de la Concepción in Lima, discuss problems of diocesan administration in outlying zones of the archdiocese of La Plata, and analyse the ius patronatus in Chile during the independence movement.

The editors' purpose has been to present approaches that explore the relationship between different types of normativities, their local adaptations, their links to global debates, the forms of conflict resolution, as well as the role of jurists, theologians and other actors. The contributions propose new research fields for legal history and the history of the Church, but are also relevant for social and cultural historians. They contribute to a better understanding of the normative religious universe of Ibero-America between the 16th and 19th centuries. An upcoming third volume will cover the viceroyalty of New Granada, and the tetralogy will be completed with a final volume on Brazil.

The volume is available as usual on the website of the MPIeR for PDF download in Open Access [here].

Weekend Roundup

• The latest "AHR interview" is with Bianca Premo and Yanna Yannakakis, on their forthcoming American Historical Review article on legal jurisdiction and indigenous agency in colonial Mexico.

• From the Washington Post's "Made by History" section: Eric Rauchway (UC Davis) on "what Green New Dealers can learn from the first New Deal"; Ron Mize (Oregon State University) on what happened last time the U.S. militarized its southern border; and more.

• HLS’s Annette Gordon-Reed speaks on Confederate iconography and bias as part of the University of Houston Law’s Distinguished Speakers series on February 14 from 4:00 p.m. to 5:15 p.m.

• Advance alerts.  In Law and History Review: Restricting the Juror Franchise in 1920s England and Wales by Kevin Crosby.  In the American Journal of Legal History: Investor-State Dispute Settlement at the Dawn of International Investment Law: France, Mauritania, and the Nationalization of the MIFERMA Iron Ore Operations, by Jason Yackee.

• Seth Barrett Tillman has posted his latest briefs in the Emoluments Clause litigation, here and here. 

• Have you visited the ASLH website and The Docket lately?

• Books in Review. Karen J. Greenberg on Jonathan Gienapp’s Second Creation in The Nation.  David W. Blight on Judge Richard Gergel’s Unexampled Courage in the New York Times.

• ICYMI: The Minnesota Spokesman-Recorder’s “Minnesota Black History Salute” of Lena O. Smith, “Minnesota’s first female African American lawyer.”  The Knox Student on the Illinois Supreme Court Historic Preservation Commission’s traveling exhibit on the history of Illinois's judiciary.

• Update:  We've just spotted a new “Made by History” op-ed: Why Ford needs to grapple with its founder’s anti-Semitism, by Victoria Saker Woeste, American Bar Foundation.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

On Turner’s Westward March from a Different Perspective

Frederick Turner’s description of U.S. territorial expansion as a march to no man’s land (the so-called Turner frontier thesis) has been questioned and to a large degree discredited in recent decades. Among other things, historians have pointed out to the obvious: the land was never empty and most actors were aware of the presence of native peoples (and of other colonial subjects) whom they sought to dispossess. 

Having studied the territorial expansion of Spain and Portugal in both Europe and the Americas, I cannot but agree.[i] Yet, dismissing Turner altogether is like throwing the baby out with the bathwater. As happened with the Tannenbaum Thesis (that compared slavery and race in South and North America), once completely discarded and now undergoing at least a partial rehabilitation, it is perhaps time we recalibrated our visions regarding how European actors (and their American descendants) sought to justify their activities. 

The experience of Spain and Portugal can be useful in this regard. Although the Spanish and the Portuguese signed bilateral treaties and invoked rights by discovery, conquest, and, on occasions, papal bulls, they mostly based their claims on occupation. They disagreed about what occupation was, and they certainly conflicted over who had it, but they referenced a common framework according to which those who used the land “appropriately” would acquire rights to it. This vision permeated both what they did and what they said in both Europe and the Americas, vis-à-vis members of their own group as well as vis-à-vis outsiders, both natives and other colonial powers. 

The linking of land rights to possession was of course anchored in European legal traditions. By the early modern period, these traditions instructed that, to obtain rights, one had to occupy the land for an extended period without suffering opposition. Most actors who invoked these ideas were not jurists and many among them were illiterate peasants living in remote communities that their contemporaries classified as uncivil. Yet, these individuals were convinced that if they acted on the territory, if they opposed the pretensions of their rivals (the best opposition being the most vocal and most violent because it best manifested their disaccord), they would acquire rights.  

Contemporary actors never explained where this understanding came from and they were rarely cognizant that their discussions replicated erudite legal doctrines. Instead, they usually affirmed that this was the way things were, everywhere, always. They described having watched their parents and friends do the same or having heard stories about what happened when they did not. Faced with this reality, I constantly asked myself: did these ideas originate in customs that were then formalized by jurists (as many of us now view the contribution of ius commune jurists to European legal development), or did jurists succeed in disseminating their doctrines to the point that they permeated debates among contemporaries, even the most illiterate and the most peripherical? If they did, what instruments did they use? Who and what contributed to their success? 

While contemporary documentation gave no answers, it nevertheless made clear that actors were aware of the existence of native peoples (and other colonists) and were cognizant of their entitlements. Nevertheless, almost none of them considered that this presence should hinder their penetration and occupation.  Some justified penetration and occupation by the duty to convert or civilize but most based it on discrediting the use natives (or other colonists) made of the land, arguing that it was inappropriate and therefore bestowed no rights. In this respect, Turner was right. From the perspective of contemporary actors, the land was empty, if not of people, at least of rights. However, Turner was wrong because he failed to appreciate the degree by which debates on land were entangled in debates about people. Contemporaries knew that the best way to take possession of the land was either to discredit its inhabitants or by taking possession of them. Conversion was one common way to take possession of people (conversion being considered to have both religious and civic consequences), but alliance making, and conquest was another. Imagining natives, not territory, as the true no-man’s land, in Spain and Portugal, at least, actors suggested that before Europeans arrived and natives were subjected to them, natives belonged to no one and any European could take possession of them as a “vacant” property. Yet, these Spanish and Portuguese also asserted that after natives were “taken,” indeed possessed, they were occupied and could not be legitimately “taken over” by another group. 

Because at stake was not only occupying land, but also (perhaps mainly) occupying people, Spanish and Portuguese presence in the Americas was much more unstable, tentative, and provisional than most colonial historians tend to describe. Ambiguity and chaos were more typical than certainty and clarity. The outcome was not the construction of an uninterrupted colonial territory, but instead the emergence of a fragmented space that constantly changed shapes alongside a struggle over the use of land, which was never detached from the struggle to control people.  

---

[i] Tamar Herzog. Frontiers of Possession: Spain and Portugal in Europe and the Americas. Cambridge MA: Harvard University Press, 2015 (also available as Fronteras de posesión: España y Portugal en Europa y las Américas. Madrid: Fondo de Cultura Económica, 2018; Fronteiras da Posse. Portugal e Espanha na Europa e na América. Lisbon, Imprensa de Ciências Sociais, 2018 ; a Brazilian translation is forthcoming).

Mirow on Duguit and Property in Argentina

M. C. Mirow, Florida International University College of Law, has posted Léon Duguit and the Social Function of Property in Argentina, which is forthcoming in Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration, ed. Paul Babie and Jessica Viven-Wilksch (Springer):

Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.

Rosenmüller on New Spain and New Galicia

Christoph Rosenmüller, Middle Tennessee State University, has posted Two Kingdoms in a Multi-Tiered Empire: New Spain and New Galicia in the Mid-Eighteenth Century:

This article casts light on the structure of the Spanish empire by focusing on the relations between two American kingdoms, New Spain and New Galicia. New Spain comprised the heartland of colonial Mexico, and New Galicia lay to its northwest. New Spain enjoyed significant status and to a degree controlled New Galicia and other dependent realms. By the mid-eighteenth century, the viceroy of New Spain sent inspectors, appointed treasury officials, and even wrested the mining camp of Bolaños from New Galicia. Yet New Galicia insisted on its autonomy. Its president resisted the viceregal interventions and finally succeeded in recovering jurisdiction over Bolaños. The relationship between the two North American kingdoms therefore differed from that between other constituent regions of the empire. The kingdom of Quito, for example, was fully subordinate to the Peruvian viceroy in Lima. The empire can therefore be described as multi-tiered and not exclusively characterized by the hegemony of Madrid/Castile over its overseas possessions. Instead, the empire consisted of uneven and overlapping ties between a group of core kingdoms and their dependent territories, and their relations changed over time.

Special Issue: Brazilian Civil Code of 1916

We have learned of the publication last year of a special issue of the journal of the Instituto Histórico e Geográfico Brasileiro commemorating the centennial of the first Brazilian Civil Code (1916).  Legal historians from Brazilian, German, Argentinian, Austrian and Peruvian universities contributed to the special issue, which was organized by Professor Airton Seelaender, Universidade de Brasília.  Essays discuss the creation of the code (including contributions from Miloš Vec and Jan Dirk Harke on its debt to pandectistics), as well as the code’s impact on Brazilian law, politics and economy.  H/t: Patrícia Soster Bortolotto

Two from Max Planck

[We have from our friends at the Max Planck Institute for European Legal History the following announcement of two new, open-access volumes in its series "Global Perspectives on Legal History."]

With Diritto: storia e comparazione. Nuovi propositi per un binomio antico, edited by Massimo Brutti and Alessandro Somma, the Max Planck Institute for European Legal History presents the newest publication in its Open Access book series Global Perspectives on Legal History.

In 25 contributions, both legal historians and comparative lawyers investigate the interrelationship of their fields of expertise as well as their current development. Thus, some contributions such as Sulla convergenza tra studio storico e comparazione giuridica (M. Brutti) or Comparazione giuridica, fine della storia e spoliticizzazione del dititto (A. Somma) concentrate on theoretical aspects, while others are dedicated to specific research topics, such as Rethinking eurocentrism. European Legacy and Western Colonialism (L. Nuzzo) or Quale storia del diritto? Vecchi e nuovi scenari narrativi tra comparazione e globalizzazione (E. Augusti). The result are diverse ideas on the meaning and future of two scientific disciplines, which are historically closely connected, have in the 20th century increasingly moved away from one another, and are now, given the opening of both disciplines to new methods and theories, not only enquiring about their relation to one another but also about their disciplinary identity. The multilingual volume contains mainly Italian, but also English and Spanish contributions.

The second new volume in the series is edited by Benedetta Albani, Otto Danwerth and Thomas Duve: Normatividades e instituciones eclesiásticas en la Nueva España, siglos XVI-XIX, is the first of four planned books dealing with the contribution of ecclesiastical institutions to normative orders in early modern Ibero-America.

What significance did religious institutions and their actors have for the formation ofnormative orders in Mexico (New Spain) of the 16th to the 19th centuries? The volume takes up this little-researched question in the field of legal history. In fourteen Spanish-language, interdisciplinary papers, the authors examine the relationships between various types of religious normativity (such as canon law and moral theology), their local adaptations and links to global debates. They also deal with diocesan administration and sacramental dispensation, with indigenous and Afro-American actors in court, and with normative aspects of piety in cultural life until the 19th century. These research findings are relevant not only to legal history, but also to the history of the church and theology, social and cultural history, and ethnohistory.

Both volumes are available as usual on the website of the Max Planck Institute for European Legal History for PDF download and, in addition, in JSTOR and in the Internet Archive - always in Open Access.

Justice in Colonial British and Iberian America: An Essay Collection

We’ve received word of the publication of Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (NYU Press, 2018), edited by Brian P. Owensby, University of Virginia, and Richard J. Ross, University of Illinois Law and History:

As British and Iberian empires expanded across the New World, differing notions of justice and legality played out against one another among settlers and indigenous seeking to negotiate their relationship. In order for settlers and Natives to learn from, maneuver, resist, or accommodate each other, they had to grasp something of each other's legal ideas.  This volume examines how Natives and settlers in both the British and Iberian New World empires used the other’s ideas of law and justice as a political, strategic, and moral resource.  Settlers and indigenous people construed and misconstrued each other’s legal commitments while learning about them, never quite sure if they were on solid ground.  Chapters explore the problem of “legal intelligibility”: How and to what extent did settler law and its associated notions of justice become intelligible—tactically, technically, and morally—to Natives, and vice versa?  Ultimately, Justice in a New World offers a dual comparative study of how people in a colonial encounter struggled to make laws and codes of justice intelligible.

Here are some endorsements:

Justice in the New World is an exciting and timely collection of essays with thinkers who have been at the forefront of research on legal intelligibility in the Americas. The collection brings questions of justice, law, and legality into an imperial and comparative frame, with close attention paid to the differences in the Iberian and North American worlds."

—Michelle McKinley, University of Oregon School of Law, Author of Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima

"The essays in this volume unsettle much of the conventional wisdom about the process of colonization, by revealing the staggering complexity of the law’s role in mediating relationships between settlers and indigenous people in the American colonies of Britain and Spain. The essays are richly researched and elegantly written, and they are bracketed by extraordinarily thoughtful introductory and concluding chapters. This book is essential reading for anyone interested in colonial or legal history."

—Stuart Banner, author of How the Indians Lost Their Land: Law and Power on the Frontier

"What could 'law' and 'justice' mean in the context of the European conquest and colonization of the Americas?   The deeply researched essays in this volume examine illuminating cases where justice was a contested, ever-shifting concept as indigenous peoples and colonizers confronted one another in settings from Brazil and Peru to Florida, New England and Virginia.  Featuring a distinguished roster of scholars, the book’s broadly comparative approach, as well as its insistence on foregrounding indigenous justice, will ensure that it is recognized as a landmark contribution to the burgeoning literature on law and colonialism."

—Allan Greer, McGill University

Revista Jurídica Precedente 13:2

[We have word of the publication in Spanish and as a free download of the second of two issues of volume 13 (July-December 2018) of Revista Jurídica Precedente, a publication of the Universidad Icesi of Colombia.  Andrés Botero Bernal, Universidad Industrial de Santander, Bucaramanga, and Mario Alberto Cajas Sarria, Universidad Icesi, Cali, are the guest editors.]

Historia del Derecho en América Latina II. Editores invitados: Andrés Botero Bernal (Universidad Industrial de Santander, Bucaramanga) y Mario Alberto Cajas Sarria (Universidad Icesi, Cali).  Publicado: 2018-07-03

Presentación

Presentación: Historia del Derecho en América Latina II
Andres Botero Bernal, Mario Cajas Sarria

Artículos

El Invite Ilustrado. Real lotería y proyectos de poder en el siglo XVIII
Carlos Petit
        
Economía, moral y derecho en la Europa cristiana: Justo precio, usura y capitalismo mercantil (siglos XII-XVIII)
Marcela Castro Ruiz
        
La evolución histórica del control de constitucionalidad en Bolivia y su proyección hacia un modelo plural
Alan E. Vargas Lima
        
Orígenes del Consejo de Estado
Armando Martínez Garnica
        
Derecho de la persona transexual en Brasil
Patrícia da Silva Morais
        
Las críticas al derecho romano en Cuba durante la primera mitad del siglo XIX. A Propósito de la modernización de la enseñanza y la ciencia jurídica
Fabricio Mulet Martínez        

Nova et vetera

Crédito público, derecho mercantil y arte del grabado
Andrés Botero Bernal
     
El crimen de herejía y su represión inquisitorial
Elisa Álvarez Díaz

Price on Jus Soli and Statelessness in the Americas

Polly J. Price, Emory University School of Law, has posted Jus Soli and Statelessness: A Comparative Perspective from the Americas, which appeared in Citizenship in Question: Evidentiary Birthright and Statelessness, edited by Benjamin N. Lawrance and, Jacqueline Stevens (Duke University Press 2017):

The New World is comparatively generous in the law’s provision of citizenship to all persons born within national boundaries, including the children of undocumented persons and temporary visitors. A striking feature of citizenship practices in the Americas is the near uniformity of reliance on jus soli. Indeed, the jus soli principle “has primarily become a Western Hemisphere tradition.” The predominance of jus soli is said to account for the relatively low rate of statelessness in the Americas compared with other parts of the world. But the definitions of “stateless” in international law instruments and in practice lack precision and thus confound easy measurements of political, civic, and economic status.

Even jus soli laws that are meant to ensure that people are not born stateless depend on the willingness of a marginalized population to register a birth or for nations to recognize that birth based on the time that undocumented parents reside in the country. In this lead chapter I explore the limitations of the international legal definition of statelessness in order to illustrate two points. First, what should be termed “effective statelessness” is a necessary adjunct to the concept of de jure statelessness. Without this conceptual pairing, we cannot judge the actual relationship between a state and those who belong to it. In the Americas, as I will show, a substantial number of persons entitled to citizenship cannot prove it, or such proof is disregarded by government officials. At the same time, these persons do not qualify for protection under international law because they are not legally “stateless.”

Second, without some measure of “effective statelessness,” claims that the Americas should be viewed as a relative success story because of the jus soli norm are questionable. Jus soli prevents statelessness only where it is accompanied by meticulous and generally recognized documentation. Effective statelessness can exist in any nation, and it is a hidden problem in the Americas, jus soli notwithstanding.

Effective statelessness occurs due to poor documentation of births and administrative ineptitude, as well as intentional discrimination. In the Americas, including the United States, the predominant reasons for effective statelessness include inability to prove nationality, as well as the failure of countries to document or recognize their own citizens. International law treaties on statelessness fail to provide a sufficient safety net and thus offer no meaningful remedy to the problems of ineffective citizenship addressed here.

Symposium Issue: Legal History in Latin America

We have word of the publication, on-line, of the first of two volumes of Precedente: Revista Jurídica devoted to Legal History in Latin America. (Universidad Icesi of Colombia publishes the journal.)  The issue is in Spanish and is available as a free download.  Here is the TOC:

Régimen de las moratorias en las provincias argentinas de Salta (1825) y Tucumán (1861)
Abelardo Levaggi

Enseñanza de la historia del derecho centrada en el aprendizaje de los estudiantes a lo largo de 115 años de la fundación de la cátedra (Chile, 1902)
Eric Eduardo Palma, María Francisca Elgueta

Tradición y cambio político en Provincia: Popayán, Nueva Granada y la redacción de la Constitución de 1814
Adolfo León Guerrero García

El primer panamericanismo: puente entre el derecho de gentes y el derecho internacional
Luis Ociel Castaño
   
El pragmatismo jurídico de Oliver Wendell Holmes Jr. y el Derecho como Sistema Social de Niklas Luhmann: un encuentro histórico
Vagner Felipe Kühn
   
Derecho y caricatura política: el constituyente primario de 1990 y el cambio constitucional de 1991
Diana Paola Gil Guzmán

CFP: Encounters, Rights, and Sovereignty in the Iberian Empires

[Via H-Law, we have the following announcement.]

The Call For Papers is now open for the International Conference “Encounters, Rights, and Sovereignty in the Iberian empires, 15th-19th centuries."  Focused on the colonial encounters fostered by the Iberian empire-building processes and on the strategies developed to regulate the rights and lives of native and colonial populations, this conference welcomes proposals that privilege the comparisons and interactions between the Portuguese and Spanish colonizing dynamics, in a timeframe spanning from the early stages of the Iberian colonization to the first outbreaks of independence.

Topics may include, but are not limited to: Colonization models and empire-building strategies; Representations of native populations; Race relations and debates on race; Juridical regulations of colonial interactions; Colonial origins of human rights; Integration/ exclusion of native populations within colonial societies; Missionaries as political and cultural brokers; Active and passive dynamics of resistance; Political communication and circulation of information; Trade and commercial interactions; Portuguese and Spanish written cultures regarding colonial endeavours; Scales of power: centres versus peripheries; Violence and justice; Borders and frontiers.  [More.]

Cajas on Judicial Review of Constitutional Amendments in Colombia

Mario Cajas, Universidad Icesi, Colombia, has published Judicial Review of Constitutional Amendments in Colombia: A Political and Historical Perspective, 1955-2016” in the journal Theory and Practice of Legislation (2017):

The Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C-551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.