How Legal Change Happens

Cornerstones of freedom, democracy, human rights.

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By Marlene Cimons, National Science Foundation

During the latter part of the 18th Century, women, slaves and Indians within the colonies of the Spanish Empire initiated an explosion of lawsuits against their husbands, owners and local leaders, seeking better treatment, freedom, and equality.

Their actions challenge a widespread belief that the region lagged behind other countries, such as America or France, in acquiring democratic ideals and inspiration, particularly in notions of equality, popular sovereignty and natural rights.

These ideas, in fact, “had a life and were very vibrant in the court system of Spanish  America in the late 18th Century, and those concepts were wielded not against the King, but against local authority figures, like slave masters,” said Bianca Premo, associate professor of history at Florida International University in Miami. “They were instrumental to shaping the kind of philosophies that are important to us today, and encourage us to rethink their place in traditional narratives of the West.”

Premo, an historian and social scientist, has been studying six regions of the Spanish Empire during this period, including Mexico City and Oaxaca, in Mexico; Lima and Trujillo, in Peru; and two regions in Castile, Spain. She is trying to determine the scope of the litigation, specifically how subordinate colonial groups exploited changes in Spain’s legal regime by defying community leaders, rather than confronting the colonial state itself.     

“The surprise isn’t just that the Spanish Empire had this enlightenment, but that it was specific to the Spanish colonies,” Premo said. “When I look at cases women brought against their husbands over alimony, for example, you can see the differences between Spain and Spanish America—the women in the colonial cities were more aggressive.”

Her work is supported by a $59,845 grant from the National Science Foundation as part of the American Recovery and Reinvestment Act of 2009.  The funds have been used to train research assistants, and for travel on U.S. airlines to the countries under study, Premo said.

More importantly, however, the research ultimately will provide important material for the university’s largely Hispanic student population, particularly those who plan to attend its newly established law school.  “By showing law as a living historical process, it highlights the region’s unique experience in the development of modern legal regimes and the formation of the concepts of legal rights,” she said.

“I teach at an institution where 60 percent of the students are Hispanic, and many of them will likely go on to the law school here, especially the history majors,” she added.  “The content I teach, especially in terms of sharing law research with my students, can have an impact on them. They are interested in learning civil law traditions in the countries of their heritage, and some might want to practice international law. It’s important to know these civil law traditions, as well as the common law of the United States.”

Premo has pored over thousands of documents contained in the legal archives preserved in the regions under study, often scrutinizing ancient, dusty manuscripts. “In some cases, like in national archives, they’re well cataloged. But in others, like in the Church archives of the Diocese of Toledo, where I examined divorce disputes, I pore through boxes of hundreds of cases that haven’t been looked at in centuries,” she said.

“They’re written in eighteenth-century handwriting, obviously, and I generally—except in rare archives where photos are allowed or I can afford to pay steep fees—read them right there and take notes on them as I go,” she added.  “But it is a beautiful process of discovering people’s stories, and thinking about how they tell those stories to judges, and can be really engrossing.”

She also has conducted a statistical analysis of the holdings, as well as of inventories of cases on court dockets that she discovered throughout the time period. “That statistical analysis is what graduate student research assistants have been most helpful with,” she said.