THE RECEPTION IN MEXICO OF THE ALFONSO GARCÍA-GALLO INSTITUTIONAL SCHOOL
Jose Antonio CABALLERO^*

Original Text (Spanish) PDF

SUMMARY
I. The García-Gallo School. II. The García-Gallo Institutional School in Mexico. III. Historiographic Production and the Institutional School. IV. Conclusion.

I. THE GARCÍA-GALLO SCHOOL

Alfonso García-Gallo’s ideas on how the history of law should be done are characterized by the special attention one must pay to past legal phenomena. In this regard, he was against the works in which law is not the object of independent technical analysis, but instead is used to explain social or political events. The proposal strives to identify the positive law of the past and analyze it from a legal perspective in its temporal context.¹

For García-Gallo, the main purpose of the history of law is to study the origin and changes of law through time.² From that general objective, he explains an institutional approach in which the scholar deals with the analysis of the positive law governing social life institutions.³ At this point, García-Gallo establishes the difference between the institutional approach being explained and a dogmatic approach, by stating that it is more interesting to study how the problems faced by society have been solved by the law, instead of by “following the evolution of abstract concepts which can be applied to any problem.”⁴ This objection, however, does not reveal to the law historian the obligation to give legal treatment to the norms found. This can be justified from two perspectives. On the one hand, the law in force in the past is a subject that requires a specialized study. According to García-Gallo, the legal studies already performed do not fulfill that aim. On the other, he restores the technical character of the law when pointing out that legal texts are not easily interpreted and those lacking suitable training will not be able to read what laws say between the lines: “The text is the same for everybody, but a jurist knows how to look into it.”⁵

As to the institutional approach’s theoretical framework, García-Gallo holds that the framework of law is made from events and how men value them. Norms are a result of that process. Consequently, the law historian must first study that formative process and later focus his interest strictly on the norms.

With regard to how the institutional approach studies its subject, García-Gallo explains that the law historian should pay attention to the institution, object of the study, observing its continuity. In this sense, the period of analysis is established based on the term of effectiveness an institution has. Thus, the institutional approach allows the researcher to set aside the periodicity used by history in general, and focus on the characteristics of the temporal space in which the institution in question was in effect.

By analyzing the norms, García-Gallo’s proposal adopts a history-oriented nature. Thus, the purpose of the law historian consists of analyzing the norms being studied, trying to use the same techniques used by the lawyers that applied them. In other words, the law historian must put himself in the place of the jurists of the period in question, in order to achieve a correct study of the norms he is analyzing. In order to achieve this task, he recommends reading doctrinal texts, allegations and memorials and, in general, texts related to the legislation of the period in question. By doing that, the historian will be in conditions to have a better approach.

According to what is described in the Metodología de la historia del derecho indiano, selecting the topic that could be the object of research mainly focuses on three areas: sources, institutions and legal knowledge.⁶ The topics proposed are also part of a program for the development of field of Latin-American Indian law, as long as it begins with the study of the sources and then that of the institutions governing those sources.

Lastly, legal knowledge is studied. Topics to carry out legal-historical studies appear in the derecho indiano methodology.

In studying the sources, research should define, first of all, the scope and nature of the documents in question. In this sense, it is necessary to determine the authenticity of the documents and the characteristics of the information obtained from them. Then, research can continue to make a review of the information contained in the documents and the role of the authors. An additional approach could be to focus on the impact the document had at the time it appeared. Summarizing, works on law sources should not be limited to their publication, but it is essential for the researcher to carry out a study of their contents, that contributes to value the scope of the texts published and the circumstances in which they were drawn up. García-Gallo divides the analysis that can be made from a source in two parts: he establishes what he calls the internal critique and the external critique of the document. In the first one, the researcher pays attention to the construction of the rules from the assessment men give to life events. The second critique deals with the difficulties in determining the authorship and authenticity of the text.

As for the work on sources and its usefulness for future research, García-Gallo recognizes the difficulties to obtain all the sources on a given topic. However, he does underline that it is expedient for research work to be supported by extensive documentation. Nonetheless, he observes that in some cases sources may become excessive and provide little additional information. In this regard, he makes reference to the analysis of judgments pronounced by jurisdictional authorities and the uselessness in analyzing all the resolutions. In such cases, the researcher must select the material. Therefore, the difficulty of the work on sources lies in its recovery and study; it is necessarily the first step to start a program aimed at developing the history of law.

From the recognition and study of legal material from a given period, obtained through dedicated research on sources, we can go on to carry out specific research of its institutions.

For this, García-Gallo holds that institutions can be studied from two perspectives. On the one hand, it is possible to study “the institution just as it is shaped in the laws or in legal literature.”⁷ On the other hand, we can take “as the starting point, the problem or social situation in which it [Law] tries to order, without prejudice of dealing with legal affairs and doing so with a rigorous technique.” ⁸

As part of the schedule suggested by García-Gallo, the development of institutional works should be carried out and the idea of the relationship between events and the norms intended to govern them should be reintroduced. He presents this as one of the objectives of research. Additionally, the time factor and the changes suffered by both events and norms can be taken into account. As to the facts, García-Gallo emphasizes the importance of knowing them as they really occurred; so, he recommends making a comparison of the sources at hand, in order to have a better approach to the truth.⁹ The purpose is to compose an explanation of the changes in regulation, based not only on the circumstances, but also on the legal technique used to regulate its effects. This line of work will lead the researcher to create a sort of “biography” of the legal institution in question.

Finally, the third possibility to carry out historical-legal studies is the one known as research on legal culture. For García-Gallo, this kind of research is centered on discovering the general environment of legal culture in a given period. In this sense, he proposes carrying out work that identifies the general characteristics of the legal circle, its influences, the tension between its members and institutions, literature and law schools and, in general, all the factors that allow one to portray legal life in a given period. García-Gallo proposes the study of legal culture by drawing up inventories of books and their descriptions, as well as by identifying schools of legal thought.¹⁰

This kind of research not only requires the analysis of sources, but it also requires knowledge of different aspects of the legal world, the most important of which are the legal institutions and ideas that originated these sources. In view of this, studies on legal culture, from a programmatic point of view, can be seen as a third phase of the plan García-Gallo proposes.

In order to close this section, we should mention the role García-Gallo had in terms of the development of the Latin-American Indian law history. According to Tau Anzoátegi, his keen interest in Latin-American Indian law

…coincided with a new exteriorization of Spain’s interest in Latin America… after the civil war, the government emerging from the armed conflict strove to have new links by extolling the Hispanic world…

Mr. García-Gallo takes part in this work but, in contrast with others who only managed to write hollow works or pasatista essays, he works with the thoroughness of a scholar convinced of finding himself before a subject that demands critical examination and a new approach.¹¹

His teaching work, studies and works on the publication of sources contributed to the creation of the school of law historians grouped around the Instituto Internacional de Historia del Derecho Indiano [International Institute of Latin American Indian Law], and he then became the leader of that movement.

II. THE GARCÍA-GALLO INSTITUTIONAL SCHOOL IN MEXICO

In the seventies, Guillermo Floris Margadant founded the Roman Law seminar at the Universidad Nacional Autónoma [National Autonomous University] de Mexico’s School of Law. Not long afterwards, the seminar would come to include both Roman Law and the history of law. Students and professors interested in Roman Law and the history of law began to emerge from this seminar and were led by Margadant himself. Until then, the only institution showing interest in the study of the history of law was the Escuela Libre de Derecho [Independent School of Law].¹²

The role said school had in developing that field was firmly established with the work of Toribio Esquivel Obregón and Javier Cervantes. Apuntes para la Historia del Derecho en México [Notes on the History of Law in Mexico] (Mexico 1937-1947) by Esquivel Obregón is still a reference work for those devoted to this field. Nowadays, Francisco de Icaza and Jaime del Arenal have kept up the tradition; although they have made significant contributions.¹³

Meanwhile, from a stance closer to history, Silvio Zavala and Eduardo O’Gorman began a series of works devoted to the study of colonial affairs. Silvio Zavala deals more often with legal issues. His contribution to the history of law is prolific and has high quality. In the middle of the century, the arrival of exiled Spanish professors to Mexico contributed to generate new legal-historical works. The teachings and works of these professors have been extremely useful for training Mexican legal jurists; Rafael Altamira is a remarkable example of them. His work includes the publication of two books thought to be important tools for training specialized researchers in the study of Latin-American Indian Law: Manual de investigación de la historia del derecho indiano [Research Manual of Latin American Indian Law] (Mexico, 1948), and Diccionario castellano de palabras jurídicas y técnicas tomadas de la Legislación Indiana [Spanish Dictionary of Legal and Technical Words in Latin American Indian Legislation] (Mexico, 1961). Despite the interest shown by many academic centers, it was not possible to found a school.¹⁴

The Margadant project at the UNAM School of Law was the starting point for an institutional effort to further develop the history of law. One of the main aspects in the Margadant program consisted of contacting other institutions and researchers devoted to the development of this field. In the framework of this activity, Margadant met Alfonso García-Gallo and members of the Instituto Internacional de Historia del Derecho Indiano, as it would later be known.

Shortly after they met, García-Gallo was invited to Mexico to give a series of eight conferences. At that time, García-Gallo’s work began to be known in Mexico. The library of the UNAM Legal Research Institute had some of his works.

In the early seventies, Beatriz Bernal, a follower of Margadant, and María del Refugio González, a grant holder at the UNAM Legal Research Institute, began working in Madrid under García-Gallo’s guidance. During those years, both researchers learned García-Gallo’s methodology and embarked on a career devoted to the study of the history of law, particularly, that of Latin-American Indian Law.

At that time, José Luis Soberanes was in Valencia and, later in Sevilla, training under Victor Fairén Guillén and Antonio Muro Orejón, respectively. Antonio Muro Orejón introduced Soberanes to the study of Latin-American Indian issues by working with the sources from the Archivo de Indias.

In the mid-seventies, the three researchers trained in Spain began working at the UNAM Legal Research Institute, where they were in charge of teaching the history of law and especially Latin-American Indian Law. The subjects and the approach of the works they had drawn up during these years are closely linked with the Alfonso García-Gallo Institutional School Methodology.

The 4th Congress of the Instituto Internacional de Historia de Derecho Indiano in the city of Morelia, Michoacán, marked the start of a series of academic events in Mexico, in which the history of law, especially Latin-American Law, has played a very important role. Guillermo F. Margadant was in charge of organizing the Congress at the time.

The Congress in Morelia was also the first link between many Mexican researchers and the Latin American Indian world. It somehow gave birth to a group of researchers interested in the history of law.¹⁵

In 1978, the first Congress on the History of Mexican Law was held. This event gave rise to a program aimed at spreading the study of the History of Law in Mexico throughout the country. The proposal to hold the Congress came one again from Margadant, who was assisted by Bernal, González, and Soberanes, among others. Later Congresses would try to become a forum for the law historians in the country. The most recent Congress was held in Mexico City in 1997.

In 1989, the Anuario Mexicano de Historia de Derecho [Mexican History of Law Yearbook] was founded and since then, this publication has been the principal means for disseminating historical-legal research in the country. The publication of the yearbook was a response to the noticeable increase of the historical-legal production in Mexico. At the presentation of the yearbook, Beatriz Bernal, its technical director, said that institutions such as the Escuela Libre de Derecho, the Colegio de Mexico, the Colegio de Michoacan, the UNAM School of Law, the Centro de Estudios sobre la Universidad, and the Historical Research Institute had worked in coordination with the Legal Research Institute.¹⁶ An important part of the papers published in the yearbook can be considered part of the Alfonso García-Gallo Institutional School tradition.

In the nineties, interest in Latin-American Indian Law became evident in different events. The Legal Research Institute, headed by José Luis Soberanes, had an essential role in organizing said events and in publishing the scientific material they produced. Congresses on Mexican history of law were regularly held. In addition, many events were specifically organized for Latin-American Indian Law experts. The first of these was the 10th Congress of the Instituto Internacional de Historia del Derecho in the city of Verarcruz. Likewise, the Bulas Alejandrinas Expedition Conference was held, as well as a seminar entitled “The Latin-American Indian Tradition and the Origin of Human Rights”, and more recently, a congress on the survival of the Spanish Law in America. This last event seems to plot a new path for Latin-American Indian Law studies since it leads experts to focus more on the use of Colonial Law in the American nations after their independence. Thereby, a new perspective for creating work in which the colonial legal world can be analyzed from the perspective of the independent America is envisaged.

III. HISTORIOGRAPHIC PRODUCTION AND THE INSTITUTIONAL SCHOOL

The first works that can be considered part of the García-Gallo school date back to the sixties. These writings are articles and other contributions prepared by researchers working in Mexican institutions. Since then, the production of scientific literature in Mexico has maintained the characteristics of the institutional school. This section strives to describe how the institutional school was received in Mexican scientific production. For that purpose, we will make reference to the literature that is considered part of this trend. However, we do not intend to make an extensive catalog of these works.

The case of Mexico can be studied from the programmatic perspective taken from the A Methodology Spanish Colonial Legal History manual itself. In view of this, most of the efforts made to date are what García-Gallo calls the study of sources. In other words, these efforts belong to what could be the first step in the research of Latin-American Indian Law. Its justification is clear, since a program for the development of the history of law cannot be made without knowing about the existing historical sources.

Thus, as of the late sixties, sources for learning about Latin-American Indian Law, along with studies leading to in-depth knowledge of the characteristics of these texts began to be published in Mexico. Most of these texts were published by the UNAM-Legal Research Institute and were overseen by Beatriz Bernal, María del Refugio González, or José Luis Soberanes. The first work meeting these characteristics is Notas a la Recopilación de Leyes de Indias de Palacios (Mexico, 1979) by Prudencio Antonio Palacios with Beatriz Bernal in charge of the edition, indexes, and study. That work has a doctrinal nature, which, however, does not affect the program designed by García-Gallo, as long as the knowledge of legal thinking of the period in question is an essential tool for the author.

One year later, Recopilación Sumaria de todos los Autos Acordados de la Real Audiencia y Sala del Crimen de esta Nueva España (Mexico: UNAM, 1981) was published by Eusebio Ventura Beleña, with a preface by María del Refugio González. In 1982, another doctrinal writing, Derecho Real de Castilla e Indias (Mexico: UNAM, 1982) appeared written by Jose María Álvarez with the foreword and indexes by Jorge Mario García Laguardia and María del Refugio González.

The following works were published in the eighties:

Zorita, Alonso de, Leyes y Ordenanzas Reales de las Indias del Mar Océano, Mexico: Miguel Ángel Porrúa, 1983, preface by Beatriz Bernal.

------, Cedulario de 1974, Mexico: Miguel Ángel Porrúa, 1984, preface by Beatriz Bernal.

Puga, Vasco de, Cedulario de la Nueva España, Mexico: Condumex, 1985.

As of the mid-eighties, other institutions went on to publish sources. Furthermore, some foreign authors were in charge of editing them.

In 1987, the Escuela Libre de Derecho and Miguel Ángel Porrúa co-published Recopilación de Leyes de Indias de 1680. This work was overseen by Francisco de Icaza. The publication of the four-volume collection also included a volume with historical-legal studies on Leyes de Indias [Laws of the Indies]. The Escuela Libre de Derecho has also participated in publishing works on Latin-American Indian Law, such as Lecciones de historia del derecho indiano (Mexico, 1989) by Antonio Muro Orejón, and Organización financiera de las Indias. Siglo XVI (Mexico, 1991) by Ismael Sánchez Bella.

A year later, a group of Mexican universities and a Spanish university, along with Miguel Ángel Porrúa, published the manuscript found by Ismael Sánchez Bella, contained in the Recopilación de las Indias de Antonio de León Pinelo (Mexico: Miguel Ángel Porrúa, 1992) with a foreword by Sánchez Bella himself.

In 1993, the Fondo de Cultura Económica published Sumarios de la Recopilación de Indias by Rodrigo Aguiar y Acuña, and Ismael Sánchez Bella wrote the preface for it.

In the nineties, the UNAM Legal Research Institute continued the policy by editing sources. In 1991, Francisco Solano prepared a collection entitled Cedulario de tierras. Compilación de la legislación agraria colonial (1947-1820) (Mexico: UNAM, 1991). In 1994, Charles R. Cutter transcribed and wrote the foreword to Libro de los principales rudimentos tocante a todos los juicios, criminal, civil y executivo, año de 1765 (Mexico: UNAM, 1994). Two years later, Joaquín Maniau published the classic Compendio de la Historia de la Real Hacienda de Nueva España. Con notas y comentarios de Alberto M. Carreño (Mexico: UNAM, 1995), with a foreword by Marta Morineau.

In 1996, María del Refugio González studied and edited Ordenanzas de la minería de la Nueva España formadas y propuestas por su Real Tribunal (Mexico: UNAM, 1996). This work received the international “Ricardo Levene” award to the best Latin American Indian Law publication. This is the highest award granted to a researcher in Latin American Indian Law. Bestowing the award on María del Refugio González must also be considered recognition to the work the Legal Research Institute did by publishing Latin American Indian Law sources.

Regarding the preparation and publication of monographic studies, one of the first works is an anthology written by José Luis Soberanes, entitled Los tribunales de la Nueva España (Mexico: UNAM, 1980). The following year, Pilar Arregui published La audiencia de México, según los Visitadores, siglos XVI y XVII (Mexico: UNAM, 1981).

In the nineties, the writings of Carmelo Viñas Mey, El régimen jurídico y la responsabilidad en la América Indiana (Mexico: UNAM, 1980), and Antonio Dougnac Rodríguez, Manual de historia de derecho indiano (Mexico: UNAM, 1994), were published, among others.

But the Mexican version of the institutional school has not been limited to publishing material considered part of Latin-American Indian Law. These works include issues pertaining to the 19th Century. Such is the case of Pandectas Hispano-Megicanas by Juan N. Rodríguez de San Miguel (Mexico: UNAM, 1980), with an introduction by María del Refugio González. Some monographs were published as well. In 1987, Sobre el origen de la Suprema Corte de Justicia de la Nación (Mexico: Miguel Ángel Porrúa, 1987) by José Luis Soberanes, and El derecho civil (1821-1871) (Mexico: UNAM, 1988) by María del Refugio González were published.

Also in the nineties, the following publications appeared: Curia Fliptica Mejicana. Obra completa de práctica forense conteniendo además un tratado integro de la jurisprudencia mercantil (Mexico: Porrúa, 1991), with a preface by José Luis Soberanes Fernández; Manual razonado de práctica civil forense mexicana by Rafael Roa Barcena (Mexico: UNAM, 1991), with a preface by José Luis Soberanes Fernández; Escritos Jurídicos (1839-1863) by Juan N. Rodríguez de San Miguel (Mexico: UNAM, 1992), complied and prefaced by María del Refugio González; and Ensayo sobre el derecho administrativo mexicano by Jose María Castillo Velasco (Mexico: UNAM, 1994), with an introduction by Alicia Hernández Chávez.

IV. CONCLUSION

A general assessment on the response in Mexico to the García-Gallo school has to be positive. The publication of institutional-type sources and monographs has left a significant bibliographic heritage in Mexico. Although it must be owned that there are still sources that should be studied, and in the case of works with an institutional nature, as well as those related to legal knowledge, there is still much to be done. Even then, I believe the consideration to be done at this time should be focused on how this task should be carried out, instead of on contemplating how much there is still to be done. In view of this, we should start by reviewing the institutional school, from a perspective in which the debates for defining the history of law (history or law) no longer have the relevance they had at the time García-Gallo began writing. This must necessarily be adjusted to the methodological agenda and the approaches of the studies to be made in the future. The history-oriented perspective of an institutional school with an exclusively legal focus turns it into an excluding approach. This approach should be tempered in order to incorporate other perspectives of analysis that can also provide relevant information for the legal scope. Nonetheless, the scientific rigor held by the school and the emphasis placed on the work on sources should not be disregarded. Both stances contribute to the seriousness of the research carried out and are compatible with any approach intended for the phenomenon in question.

On the other hand, the process of response to the García-Gallo institutional school should also be understood as a stage that aroused interest in the history of law and undoubtedly contributed to the emergence of experts in Mexico. Likewise, this movement has played a significant role in establishing relationships among institutions carrying out history of law studies, thus creating a community of researchers around the Anuario Mexicano de Historia del Derecho.

Notes
* Researcher at the Legal Research Institute. I would like to thank María del Refugio González and Marta Morineau for their valuable comments.
1 This section only intends to present some of the general ideas about the García-Gallo School. For a more detailed analysis see Tau Anzoátegui, Victor “El tejido histórico del derecho indiano. Las ideas directivas de Alfonso García-Gallo”, in Revista de Historia del Derecho, Buenos Aires: 21, 1993. For a review of García-Gallo’s school of thought and reference to its response in Mexico, see González, María del Refugio, “Alfonso García-Gallo, el Indianista”, in Anuario de Historia en Derecho Español, Madrid, 1993-1994, pp. 1393 and 1394.
2 García-Gallo, Alfonso, Manual de Historia del Derecho Español, Madrid, 1984, & 34.
3 García-Gallo, Alfonso, op. cit. supra, note 3, & 41
4 Idem.
5 García-Gallo, Alfonso, Metodología de la Historia del Derecho Indiano, Santiago, Editorial Jurídica de Chile, 1972, & 279.
6 Ibidem, & 256 and subsequent.
7 Ibidem, & 258.
8 Idem.
9 García-Gallo, Alfonso, op. cit. Supra, note 6, & 306. This position is very close to the ideas of the positivistic school of history. There is extensive bibliography on the fundamental principles of this school and its contrast with other ways of making history. Sonia Corcuera de Mancera deals with this issue in Voces y silencios en la historia. Siglos XIX y XX, Mexico: Fondo de Cultura Económica, 1997.
10 García-Gallo, Alfonso, op. cit. Supra, note 5, & 333, and subsequent.
11 Tau Anzoátegui, Victor, op. cit., supra, note 2, pp. 14 and 15
12 Fernando Alejandro Vázquez Pando, “La Escuela Libre de Derecho y la Historia de Derecho patrio”, in Memoria del I Congreso de Historia de Derecho Mexicano, Mexico: UNAM, 1981, pp. 145-178
13 The purpose of this work is not to analyze the changes made in the development of the history of law in the Escuela Libre de Derecho. It is to enough to mention “Historia del Derecho, historia diferencial”, Ars Iuris, Mexico: UNAM-Instituto de Investigaciones Jurídicas, no. I, 1989 by Jaime del Arenal to give an example of the change in the trend.
14 For some considerations on Latin-American Indian legal historiography, see Beatriz Bernal, “Historiografía jurídica indiana”, in Anuario Mexicano de Historia del Derecho, Mexico: UNAM-Instituto de Investigaciones Jurídicas, no. I, 1989
15 Beatriz Bernal’s words published in: Marta Morineau, “Presentacion del Anuario Mexicano de la Historia del Derecho”, in Anuario Mexicano de Historia del Derecho, Mexico: UNAM-Instituto de Investigaciones Jurídicas, no. II, 1990, pp. 363-367
16 Idem