Like all revolutionary processes, those that led to Latin American independence were highly volatile and experimental in nature. Often accompanied by extreme violence, even open warfare, the formation of the new Latin American states in the early nineteenth century required imagining new states, institutions, and laws. The need, often urgency, to transform colonial domains into various independent units frequently coincided with the desire to end (or at least modernize) the Ancien régime. Yet the wish to supersede the past did not guarantee rupture. Instead, it initiated a period of questioning more often than answering, of experimenting more often than finding solutions. After describing the context in which the independence took place, this chapter surveys some of the questions that had to be answered, mostly by identifying debates that required settling and the difficulties entailed in achieving this goal. It examines who had the power to declare independence, how to identify the territories that would become new polities, how the national territory and citizenship were defined, how new republican structures should be formed, and elections conducted, and the legal changes all these developments entailed.

This book is the result of a collective effort by a group of scholars from Latin America, Europe, and the USA, who together wished to write a legal history that would center on the common experiences of Latin American societies over a long period, which began before Europeans invaded the continent and continue to date. The aim was to identify a narrative that would observe common trends, manifest the dramatic shifts that had occurred throughout this period, and insert these findings into a wider perspective. This in turn would reveal that debates taking place in Latin America were often linked to discussions transpiring elsewhere, to which they both contributed and from which they received input and inspiration. Our first aim, therefore, is to craft a pan-Latin American narrative and insert it into a global perspective. Our second aim is to propose a new methodology that places at the center questions rather than answers, processes rather than results, and contexts rather than descriptions of solutions. We also want to demonstrate the multiple levels on which law operates and how deeply it is embedded in social, political, cultural, and economic processes.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

Covering the precolonial period to the present, The Cambridge History of Latin American Law in Global Perspective provides a comprehensive overview of Latin American law, revealing the vast commonalities and differences within the continent as well as entanglements with countries around the world. Bringing together experts from across the Americas and Europe, this innovative treatment of Latin American law explains how law operated in different historical settings, introduces a wide variety of sources of legal knowledge, and focuses on law as a social practice. It sheds light on topics such as the history of indigenous peoples’ laws, the significance of religion in law, Latin American independences, national constitutions and codifications, human rights, dictatorships, transitional justice and legal pluralism, and a broad panorama of key aspects of the history of statehood and law. This title is also available as Open Access on Cambridge Core.

It is habitual among scholars to suggest that European nations were formed during, and to some degree because of, the colonial expansion.1 Many argue that this expansion, which placed colonizers in opposition to the natives they sought to control, to other Europeans with whom they competed, and to the large African population that they enslaved, led to the emergence of new identities. In the Spanish case, it enabled the move from multiple local distinctions to a unitary national designation, allowing individuals originating from the different Iberian kingdoms (Castile, Navarre, Aragón, and so forth) to assume a single identity as Spaniards. While some scholars pointed to the formation of nations (or proto-nations), others concluded that the colonial experience led Europeans to think of themselves as participants in a community, members of which belonged to a particular race. Imagining themselves to be distinct from both natives and Africans, these Europeans refashioned themselves as “white.”2

The conviction that England’s legal and constitutional histories were substantially different than those of other European countries is relatively widespread. To substantiate this claim, many turn their attention to the seventeenth century, which they identify as a pivotal moment in this parting of ways. According to this portrait, it was during this period that a particular English understanding of law, a ‘common-law mind’, emerged, greatly enabling, among other things, important constitutional developments.1