The last decade has seen increased interest in questions of land and colonialism, and their contemporary consequences, and this has been reflected in a growing number of publications, publicly funded research projects and international conferences.1 Traditionally studied within the fields of social and economic history and, especially in Latin America, centred around Marxist theories of development, the field is increasingly giving more attention to legal historical and anthropological perspectives. The idea of these new approaches is to move away from traditional views centred on royal laws, legal doctrine and theories of property. While the traditional focus on legal categories has provided depth and nuance to the ways in which notions of ownership have historically been defined and conceived, it has often ignored the concrete socio-historical conditions that surround these categories and, as such, give them their normative substance. Research on land and colonialism is, however, often still dominated by colonial perspectives and narratives that presume that local populations either did not have any notions of ownership or if they did they were erased and supplanted by the models of the coloniser. American, Asian and African experiences are usually only given a background role as the context and field of action for European agents and legal scholars.
By focusing on case studies from the Iberian world, this volume seeks to provide a new framework for the historical study of the problems of land and colonialism. It looks at the colonial context to show that the holding of land was not only regulated through European doctrine, laws and grace, but was bound to corporate bodies, communities, kinship ties and customs that varied according to the region and the local forms of social and political reproduction. The combination of these diverse orders of normative structuring can be defined as the Ownership Regime. Moving from a focus on law to a focus on historical regimes of normativity implies understanding law and juridical normativity as one component within a complex and dynamic ensemble of practices, institutions and social, religious and cultural norms that produced historically efficient and consolidated normative arrangements. Such a perspective demands that historians and legal historians interested in studying land tenure in the different regions of the Iberian world focus more carefully on how the combination of these normative sources produced specific arrangements in the ways in which land was held, owned, divided and regulated, and how conflicts were adjudicated.
The ten chapters of this volume thus restate the relationship between land and colonialism using this more nuanced perspective. In Chapter 1 (Manuel Bastias Saavedra), I reexamine traditional historiographical views of land ownership, moving away from the typical dichotomy of private and common property to explore the complex, multi-layered normative landscapes of the early modern Iberian world. I argue against the historical narrative that overly simplifies land ownership models by placing them into rigid categories that either reflect European legal traditions or impose colonial legacies on indigenous societies. Instead, a re-evaluation of how historians and legal scholars conceptualise land ownership and its regulation is required, shifting away from Eurocentric and anthropocentric frameworks towards more inclusive, locally sensitive approaches. This reorientation aims to better reflect the complex realities of land relations in the early modern period, emphasising the diversity of practices across different cultures and communities.
One way in which this reorientation may be carried out is by reassessing the ways in which ownership was historically conceived in early modern European society. Alessandro Buonoâs contribution (Chapter 2) focuses on the semantic and constitutional role played by care and responsibility in organising the distribution of and access to land in early modern Europe and America. He delves into the concept of ownership in early modern Catholic Europe, challenging the conventional anthropocentric view that separates humans from things. He argues that, during this period, things were seen as bearers of rights and capable of representing absent persons, suggesting a deep integration of objects and people into legal and social structures. Buono highlights the idea that ownership was intertwined with responsibilities towards the community and implied stewardship rather than absolute control.
The core of the volume is placed on case studies from Africa, America, and Europe. All the case studies show how, despite the existence of regulation by the Crown, local normativities were central to regulating access to land. Thiago Mota (Chapter 3) examines how Portuguese settlers and traders in Greater Senegambia during the 16th and 17th centuries were subjected to African normative regimes concerning land ownership, rather than imposing their own. Contrary to traditional narratives of European dominion, Mota argues that the Portuguese were essentially dependent on the goodwill and authority of African rulers, revealing a complex interplay of power where local norms governed land control. José Carlos de la Puente Luna (Chapter 4) delves into the intricate relationships between household and community land rights within and between ayllus in colonial Peru. The chapter argues for a relational and dynamic understanding of land ownership regimes, where particular and collective rights coexisted and were mutually constitutive. The idea of âcommoningâ emphasises how communal and domestic rights were negotiated and redefined over time. Marta MartÃn Gabaldón (Chapter 5) explores how the indigenous forms of governance and territorial control in colonial Tlaxiaco, which were deeply embedded in the Mixtec political and social systems, continued to influence the regionâs socio-political landscape. She uses the idea of âmaskedâ relationships to highlight the subtle or hidden ways in which traditional structures of power and land ownership persisted under colonial rule, even though they were nominally reorganised or subsumed under the new legal frameworks imposed by the Spanish.
These kinds of âmaskedâ relationships also appear in Carolina Juradoâs chapter (Chapter 6), which explores the normative complexities and the implementation of the 1591 Royal Decrees concerning land rights within indigenous communities in colonial Charcas. The chapter shows the importance of detailed archival work, since the intent of the Spaniards to remove power from traditional corporative authorities by placing the holding of land at the domestic level ultimately failed. Through indirect information retrieved from censuses, Jurado shows how the reorganisation of land tenure conducted by Spanish authorities eventually reverted to supradomestic levels of organising land relations as a way to better manage production and resources. Ãñigo Ena Sanjuán (Chapter 7) explores the historical management and dispute resolution regarding grassland ownership and use in the Pyrenean valleys of Ansó and Hecho from the 17th to the 19th century. He emphasises the role of local agreements, known as concordias and sentencias arbitrales, in maintaining communal land rights and resolving conflicts over land use. The chapter details how these agreements, deeply rooted in local customs and historical practices, facilitated sustainable land management and shaped local identities and governance. The historical practices of managing communal lands through local agreements in the Pyrenean valleys represented a form of normative ordering that was effective in maintaining community resources and stability.
However, being rooted in colonial contexts, local normative arrangements did not always stave off dispossession and encroachment on traditional community lands. Alcira Dueñas (Chapter 8) delves into the colonial administrationâs impact on indigenous land rights in the Andes, particularly focusing on the Vico and Pasco regions during the late 18th century. She examines the shift from the use of amparos (legal protections for possession) to the reliance on cartographic evidence in land disputes, highlighting how these changes facilitated the dispossession of communal lands. Dueñas argues that this transition not only altered the means of legal engagement but also reinforced colonial and later aristocratic land grabs at the expense of indigenous communities. Crislayne Alfagali (Chapter 9) examines the land tenure conflicts that emerged from the establishment of an iron foundry in Ilamba, Angola, in the late 18th century. She explores the colonial dynamics of land expropriation and the various strategies employed by local sobas (chiefs) to maintain their political power and control over natural resources. Alfagali highlights the complex interplay between colonial exploitation and indigenous strategies of resistance, adaptation and negotiation by showing how colonial demands intersected with local traditions, revealing a complex landscape of normative and cultural negotiation.
Finally, Rosa Congost (Chapter 10) provides an epilogue in which she argues for a de-Westernisation of the models of land ownership used in historical analysis. She challenges the dominant Western-centric historiography, which tends to apply European models of land ownership universally without considering the specific historical and cultural contexts of other regions, particularly Latin America. Congost emphasises the need to recognise and incorporate diverse historical experiences and normative systems to provide a more accurate and nuanced understanding of land ownership across different societies. She calls for more pluralistic and inclusive frameworks that acknowledge the legitimacy of non-Western forms of land ownership and governance. This epilogue, from one of the great European specialists in rural history, is both an invitation and a challenge for the next generation of historians interested in land tenure.
This volume was conceived as early as 2019 as part of the activities of the Glocalising Normativities (GloNo) project at the Max Planck Institute for Legal History and Legal Theory (mpilhlt).2 That project marked the first coordinated effort at the Institute to move from a Latin American perspective towards one that included all the former territories of the Spanish and Portuguese empires, in what is increasingly referred to as the Iberian world. The aims of this effort, as framed by Thomas Duve, was not to write a legal history of the Iberian empires, but rather to observe normativity from a local perspective in order to write a history of the âglocalisation of normativityâ from a theoretically sensitised history. This volume is partially the outcome of the early years of the above-mentioned joint research project. It has also come out of the work conducted within the IberLAND project,3 which was initially born at the mpilhlt and is currently hosted at the Leibniz University of Hannover. Most of this volumeâs chapters were presented at the conference âOwnership Regimes in the Iberian Worldâ, which took place at the mpilhlt in Frankfurt on 1â2Â September 2022. I thank the host institution, the speakers and the IberLAND team, who met there for the first time as a group, for their participation and support in making this publication happen. Plans for the second volume of the remaining contributions are already underway.
Finally, I am especially indebted to Camilla de Freitas Macedo for the coordination of this volume. It would not have been possible without her constant support. Leon Charlé was of great assistance in revising the chapters in the last stages of review and Genevieve Beech, as always, did an excellent job shaping the chapters into crisper English. I would also like to thank the anonymous peer reviewers and the colleagues of the IberLAND project for their detailed and insightful comments on the chapters. Finally, I thank Nicole Pasakarnis for her support in the editorial process.
Manuel Bastias Saavedra
Berlin / Goa, August 2024