Citizens before the law: The role of courts in postindependence state building in Spanish America

Historians of Latin America have demonstrated that the hegemony of the colonial state rested in great part on the ability of subjects - from indigenous peasants and slaves to wealthy widows and city councillors - to take their grievances to court. Although those of lower status (people of color and women) did not face their superiors as equals in the courtroom, litigation resulted in at least some form of relief frequently enough to lessen incentives for pursuing more aggressive forms of resistance to colonial exploitation. Indigenous communities might achieve a reduction in tribute payments or labor obligations, slaves could be allowed to seek less abusive masters or to purchase their manumission, and wives who convinced judges that their husbands were violent or profligate could regain control of their dowries and other inherited property. Despite the weight of the colonial historiography and a growing number of similar studies for the nineteenth century, however, judiciaries are not central to studies of nation-state formation in Latin America. Although “justice” may not be a term we associate with postcolonial regimes in the region, this chapter argues that, compared to other state institutions in the emerging nations of Latin America, judiciaries functioned with a degree of hegemony, or capacity in the terms of this volume. After independence, new states neither reinvented courts nor copied those of other republics. Rather, they transformed the judicial branch of government just enough to make it legitimate in a republican context - namely the separation of powers and professionalization of the judiciary - without enacting dramatic changes that could lead to instability (as in the case of the transition to elected presidents and legislatures). Similarly the body of law was initially marked by continuity: civil and criminal codes were not revised until the second half of the nineteenth century, but constitutions guaranteed varying degrees of civil liberties and protections and the existing codes granted judges relative discretion in the application of the law to specific circumstances, allowing them to respond to some postindependence pressures for greater rights.