Ruling with the help of pragmatic literature

How clerics used simple rulebooks to establish the new legal order in Spanish America

April 08, 2016

Spanish conquistadores subjugated the Aztec Empire in Mexico in 1521; the conquest of the Inca Empire ended 12 years later. The challenge for the Spanish crown consisted in asserting its rule over large populations and across vast territories. Clerics often provided crucial support in the establishment of the new legal system. To do this, they tended not to avail of official legal texts and mainly used simple hand-outs and summaries of ecclesiastical and secular norms instead. The spread and significance of this pragmatic literature is the topic studied by a research team headed by Thomas Duve at the Max Planck Institute for European Legal History in Frankfurt.

The disastrous impacts of the European policy of expansion on the indigenous populations of the New World have been widely described. Less attention has been focused on the question as to how it was even possible for a comparatively small group of people to establish new cultural systems, such as law and religion, there in a matter of a few decades. This is the question that the Frankfurt-based legal historians have decided to investigate.

The usual collections of authoritarian rule-making and traditional law sources, like the ius commune, are not the only important sources of information for Thomas Duve and his team. These works – written in technical legal language, often in Latin and accompanied by numerous commentaries – could only be understood by legal scholars, few of whom were active in the overseas territories. The historians have therefore undertaken to study the popular legal literature that was widely disseminated in the late Middle Ages and Early Modern period. These texts provided practitioners who had not studied law, for example law clerks, notaries and bailiffs, with sources and textbooks for their legal activities.

Such ‘pragmatic’ literature has long been undervalued in the research on the history of law – if given any consideration at all. Thomas Duve believes that these documents are underestimated: “The way in which they express complex rules in accessible language and consolidate and restructure knowledge can represent a considerable intellectual achievement.”

Establishing the legal system outside of towns and cities

The Director at the Max Planck Institute for European Legal History, together with Manuela Bragagnolo, Otto Danwerth and David Rex Galindo, therefore set himself the task of analyzing the presence and function of pragmatic legal literature in detail - specifically pragmatic literature of a religious nature. Working in cooperation with the Collaborative Research Centre “Discourses of Weakness and Resource Regimes” at Goethe-Universität Frankfurt, the research project focuses on the “Knowledge of the pragmatici in Spanish America of the mid-16th to mid-17th centuries.

It is known that the Spanish quickly established vice-kingdoms and administrative authorities in the conquered territories. The foundation of towns and cities that were easy to control and defend was an important instrument of power, particularly in the early years of colonial rule. However, the arm of the law did not extend very far at the time. Large areas, particularly the border regions, remained inaccessible to the legal system for a long time. “It was clerics who were responsible for the establishment of ideas of order in these locations,” explains Thomas Duve, “and, moreover, among both the indigenous populations and the Spanish emigrants themselves.”

The church played an important role in the imposition of colonial rule from the outset. The Spanish crown justified the conquest of the New World with the Christian conversion of the ‘unbelieving’ inhabitants. The church, in turn, supported the expansion policy and contributed to it by rapidly establishing church buildings and institutions in the settlement areas and proselytizing in rural regions. The monastic orders built numerous monasteries in the Caribbean, Central America, Mexico and South America, parishes were established, and over 30 dioceses were founded between 1511 and 1620. The number of clerics who reached America over the course of the 16th century – including 5,400 members of religious orders – far exceeded that of royal administrators.

Dictates of human conscience ensured compliance with rules 

Thus, it would appear plausible to suggest that church institutions and actors were responsible for the spread of the rule of law – and, moreover, were very effective in doing this. As historian Otto Danwerth explains: “What is exceptional here is that, in addition to ecclesiastical norms, the church also promoted moral rules in its pastoral care and mission work, and facilitated behaviour control in this way. Church doctrine thus focused on the dictates of human conscience rather than external sources of pressure.” The spread of Christian symbols, which quickly became pervasive, and the introduction of religious practices are likely to have contributed to the successful establishment of new codes of behaviour, even in sparsely populated areas.

In the Research Group, Danwerth focuses mainly on the question as to which media the clergy and monks availed of in the dissemination of religious norms. It is his hypothesis that literature aimed at pragmatists, for example summaries of major moral-theology and legal treatises, manuals and breviaries, and catechetical guides and penitentials, is likely to have played a key role in this process. Such works were widely disseminated in colonial Spanish America. It is possible to establish from library catalogues lists of works printed in Mexico and Lima and book imports from Seville that these works were once owned not only by bishops, members of religious orders and simple clerics, but also by colonial officials and settlers.

Researching a 'pragmatic' bestseller

The Manual de confessores, a penitential written by Spanish canon lawyer Martín de Azpilcueta (1492-1586) in 1552, must have been something of a bestseller in the New World. This example is particularly interesting because Azpilcueta, who is also known as “Doctor Navarrus”, penned both learned treatises for theologians and other works like the penitential, which were aimed at parish priests and other practitioners. Legal historian Manuela Bragagnolo is working on a comparison of the two genres and an analysis of the different editions that were published. She expects that this will yield insights into the methods used to ‘epitomize’ or simplify and compress complex content.

The ways in which Azpilcueta’s books and other pragmatic works found concrete application in remote mission areas is one of the questions that David Rex Galindo, a historian working on the project, would like to answer. To this end, he is studying the role of the Franciscan order in establishing ideas of order in the Mexican border region of Michoacán where few of the Spanish colonizers settled. He is interested in the problem of enforcing ecclesiastical norms and the presence and function of pastoral works like an official penitential and other texts compiled by the Franciscans themselves in a context characterized by political and religious conflict.

During the early months of its collaborative work, the research team established the basis for the studies that will now be carried out in Spanish, Portuguese and Mexican archives and libraries. Over the next three years, the legal historians in Frankfurt expect to gain insights from the evaluation and discussion of the results of their research into pragmatic books, their use and impact on the establishment of colonial rule in the New World. Last but not least, they also hope that their research on this literary genre, which has long been neglected in the context of early modern knowledge regimes, will also provide a source of inspiration for other disciplines.


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