For a long time, the legal history of early modern colonial Ibero-America has focused on royal legislation, law treatises or other legal sources from the Iberian tradition and, more recently, from ius commune. In the last two decades, there has been an impressive growth of research in the ‘History of Justice’, with important contributions from social and cultural history, usually concentrating on court practice and local law. That historiography, however, did only rarely take into consideration a topic, which is crucial for understanding the formation of Ibero-American normative orders between the 16th and 18th centuries: the use of normative knowledge, specific practical reasoning and normative practices from the religious field. It has also failed to examine systematically a literary genre that we call ‘pragmatic normative literature’, meaning those books written for the orientation and use of legal practitioners, crown officials, or for persons in charge of the cura animarum, the missionaries, priests, and other office-holders in ecclesiastical institutions.
Our book builds on the hypothesis that this ‘pragmatic normative literature’, in particular the strand that refers back to the tradition of moral theology, can be a key to an important dimension of colonial legal culture: the formation of colonial normative orders through the legal and normative knowledge from the religious field. This literature, which has received scarce attention also in European legal history, has special significance and functionality not only in the remote frontier context of the early modern empire. It was used in the colonial centres and it accompanied missionaries, but also laymen, to regions where no crown official could take office. It contained the basic moral precepts of early modern society and dealt with many aspects which are commonly considered ‘legal’: contracts, usury, property, crime, responsibility, etc. As Thomas Duve shows in his introductory chapter, these texts – such as manuals for confessors, catechisms, and moral theological instructions – and their importance have to be understood as part of a specific historical formation, the 16th and 17th century Ibero-American regime of production of normative knowledge. They allowed localisations and cultural translations and enabled erudite as well as non-erudite actors to teach and enforce the moral and legal obligations, codes of conduct and world visions both to the local indigenous and to the European population. They represent an important source for explaining the complex construction of the colonial normative order, and they are key to understand how a basic ‘normative literacy’ emerged that made communication about normativity possible, not least between the different groups and peoples living in the vast territories occupied by the European invaders and settlers.
The book brings to light not just the practical significance and functionality of this genre, but also its intellectual weight. Despite its perceived ‘popular’ nature, pragmatic literature does not merely represent – as is often assumed – a form of vulgarisation; on the contrary, it reflects conscious and considerable works of abstraction. In order to analyse this and to better understand how normative knowledge was condensed, we refer to the phenomenon of ‘epitomisation’ – an intellectual procedure well known in Roman and canon law from late Antiquity to early modern times, as explained in a chapter written by Christoph Meyer. The longue durée perspective is crucial for understanding early modern pragmatic literature, fruit of a scholarly practice deeply rooted in medieval practices and, at the same time, undergoing important transformations due to media change and European expansion.
While the two initial contributions of the volume are dedicated to methodology and overarching legal historical perspectives, a second group of articles deals with the presence of pragmatic literature in Ibero-America. After a chapter on the European exportation and dispersion of pragmatic literature in different parts of Spanish America (Otto Danwerth), two contributions discuss the distribution and use of pragmatic literature in broad regional perspectives both for the Andes and for Brazil. In a chapter on Habsburg Peru, Renzo Honores stresses the relevance of these normative texts for the emergence of colonial legal culture and juridical categories. A subsequent treatment of Jesuit pragmatic books in Portuguese America, up to the 18th century, offers important comparative perspectives for central topics of the European, Iberian and Spanish American chapters (Gustavo Machado Cabral).
The last part of the book presents six case studies – examining particular authors, genres and contexts – that highlight essential aspects of pragmatic literature. Each proposes new insights into the elaboration of pragmatic texts, their function, use and interpretation, on the Iberian peninsula as well as in Mesoamerica and South America. Manuela Bragagnolo analyses Martín de Azpilcueta’s Manual for Confessors, illustrating the complex phenomenon of epitomisation in the work of this eminent 16th century canon lawyer and moral theologian. Three other chapters deal with normative texts in New Spain. José Luis Egío offers a close reading of early colonial catechisms in the Age of Reformation before the Council of Trent had ended, while Osvaldo Moutin examines the relationship between the constitutions of the Third Mexican Provincial Council and other normative devices it produced. How normative knowledge was implemented by Franciscan missionaries in frontier regions, is the subject of David Rex Galindo’s article. The two final contributions shed light on further pragmatic genres in South American regions during the 17th and 18th centuries. An essay about devotional literature for “simple people” and Inquisitorial trials focuses on Cartagena de Indias/New Granada (Pilar Mejía). Taking up the perspective of a Spanish American periphery, Agustín Casagrande’s discussion of forensic practices in late colonial Río de la Plata closes the volume.
The authors of the chapters take up recurring themes in their contributions in order to offer a consolidated, interconnected treatment of normativity and its media, the phenomenom of epitomisation, the circulation of pragmatic normative texts as well as the variety and functions of these works in different regional contexts. Among the authors are Argentine, Brazilian, Colombian, German, Italian, Peruvian and Spanish contributors, representing different disciplines, such as legal history, cultural history, social history and ethnohistory. The authors have been drawn together through their link to Department ii of the Max Planck Institute for European Legal History in Frankfurt, either as researchers housed at the Institute or as affiliated researchers in the field of Ibero-American legal history; while others have come from their home countries to spend longer research stays as guests at the Institute.
The close integration of the book chapters into a common analytical framework was possible because the book presents the results of a research project conducted from 2016 to 2018 as part of the dfg-funded Collaborative Research Centre (sfb 1095) at Goethe University, Frankfurt (“Discourses of Weakness and Resource Regimes”), in a sub-project “Knowledge of the pragmatici: Presence and significance of pragmatic normative literature in Ibero-America (16th–17th centuries)”. Research results of the group were presented at various conferences, e.g. at the ‘xix Congreso del Instituto Internacional de Historia del Derecho Indiano’ (Berlin, Aug. 31–Sept. 4, 2016). The ‘pragmatici’ team organised various workshops like one on ‘Practical and Pragmatic Literature in Legal and Science History’, in cooperation with the Max Planck Institute for the History of Science in Berlin on Nov. 30, 2016, and a Research Colloquium at the Max Planck Institute for European Legal History on ‘Knowledge and information regimes in early modern times’ in the winter term 2016–2017. Some draft chapters of our book were discussed in Frankfurt (June 1–2, 2017) with Oracio Condorelli, Tamar Herzog, John F. Schwaller, Carlos Alberto González Sánchez, and Pedro Rueda Ramírez. We are very grateful to them and many colleagues especially from the Max Planck Institute for European Legal History for these opportunities to discuss our ideas.
Thomas Duve and Otto Danwerth
Frankfurt am Main, March 2020