SILVIO ZAVALA AND THE HISTORY OF LAW ^*
María del Refugio GONZÁLEZ ^**

Original Text (Spanish) PDF

Under the initiative of the organizers of the 7th Congress of Mexican Law Historians, today we render due homage to Silvio Zavala, a pioneer in law history studies and Mexico’s institutions. Mr. Zavala was born in Mérida, Yucatán, towards the end of the Porfirian era, on February 7, 1909. He credits his birth on the peninsula with the stimulus that awakened his interest for history, not only because it is the land of the Mayas, but because it also allowed him to grow up alongside "cathedrals, walls, convents, streets planned on a square grid, and the ruins of haciendas". He studied at the National University of Mexico and at the University of Madrid, obtaining a PHD in law from the latter. It is precisely his legal background that enabled him to "see things with a certain depth". He began his professional career in Spain and performed brilliantly in the Center for Historic Studies in that nation’s capital. He witnessed the full circle that came to a close with the fall of the Republic. These events led to the return to America of one of the most prominent figures in law history. Mr. Zavala has been a prolific writer with more than sixty books and two hundred and fifty articles to his name; some of which opened fields of investigation of the world of the Americas. It is not my purpose here to list his historiographical production but rather to outline a view from which we can appreciate his work in the sphere of law history.

The history of Latin American countries was linked to that of the Spanish monarchy for more than three hundred years. This is a factor of such importance that despite the growing influence from the United States of America in many of them, its influence is still perceivable as a defining element in their culture.

When these countries declared their independence, they started on a path that occasionally led them to deny or put aside their Spanish heritage. This is seen clearly in Mexico, where for many reasons, during the 19th century, French and North American law was far more influential than Spanish law. However, this influence occurred within the context of a culture, which preserved its Spanish heritage to a great extent; assimilated long before, during the viceroyalty of the New Spain.

In Mexico, Spanish legal culture was not accepted because the Republic was heavily influenced by France. It only began to be accepted in the 1940s by a small group of scholars, Silvio Zavala among them, dedicated to the study of the law and the institutions of the Indies, though not exclusively. The focus on the Indies is not common among us, tending more to the study of the New Spain in particular.

Law of the Indies arises in the very first years of Spanish expansion on American soil as a response to the need for having specific regulations for all those matters exclusive to the Indies that were not contemplated in the ius commune or Castilian law. If law of the Indies was that which was in force in the Indies, then it encompasses all the sources that composed it, both secular and canonical, as well as other sources of law such as customs, legal science and court practices. Moreover, it cannot be forgotten that it was made up of elements from both sides of the Atlantic, which includes the so-called law of the Indies "criollo" and the "good manners" the Indigenous peoples had at the time of their heathendom that did not clash with the new order. "Law of the Indies", is therefore, the law of the Indies, and although the extent of its validity is clearly outlined, the focus that has been given to its study has had a different meaning in each Latin American country, depending on the way they feel connected to the history of the Spanish empire; similar to what occurs in Spain.

Although Spanish law historians concern themselves with law of the Indies, this is but a small fragment of Spanish law history. When one considers that Spanish law begins in the 3rd century BC, the 300 years, (slightly more for Cuba and Puerto Rico) during which Spain and the Americas were united are not that many; the Arab occupation of the peninsula alone lasted 700 years. For the Hispanic monarchy, the Indies, despite their geographic extension, were but one of the many possessions it had outside of its peninsula and its history is merely one of the stages it has undergone throughout the course of its history; the same can be said of the history of law and of institutions.

In the works that cover an overview of Spanish law history, law of the Indies has been explained in two ways. On the one hand, authors dedicate a chapter to its discussion, and on the other, they explore certain topics in the appropriate place within the subject matter.

Setting aside investigations in which the history of Spanish law is the protagonist, it must be pointed out that this is not the only way in which law of the Indies has been approached by Spanish law historians. Some authors have made the history of law of the Indies one of their main concerns. Among the most outstanding is Alfonso Garcia-Gallo, though the credit for paving the way for the study of this area should be given to Rafael Altamira, who was one of Zavala’s professors in Spain. Altamira was a strong influence in Mr. Zavala’s decision to focus on the history of the Americas. From this "good and wise man" he learned to have a global understanding of history and not to create a dichotomy between the social and economic bases and the rest of society. That is why Garcia-Gallo asserted more than four decades ago that Zavala is among the authors that sought the explanation for the American phenomenon within the world of law, bestowing upon Castilian law the characteristic of a constituent part of the legal system en force in the New World. Mr. Zavala’s work in the historiography of the Americas, and not only in history of the law, has been outstanding on several occasions, being recognized as such on both sides of the Atlantic.

Other authors have also concerned themselves with law of the Indies in Spain as well as in the Americas, in essays, articles, and monographs, but in a more specific rather than a general way. With varying degrees of importance, erudition and richness, the work that has been done in Spain on law of the Indies sees it as a whole, within the context of Spanish law. From this perspective, the Indies is a single entity. In other words, local peculiarities are not taken into account. It could not be otherwise. From the Spanish point of view, they were, in effect, a single entity, despite the casuistry that characterized law in the Indies.

As to the works that have been written on the subject in the Americas, the first thing that must be pointed out, however obvious, is the importance of the Hispanic or colonial stage in the history of Latin America’s legal systems. The historic horizon of Latin American countries is neither as long nor as homogenous as that of the Europeans who inherited Roman legal culture; its native inhabitants did not have cultural contact with the Christian Europe of the high and low medieval eras. In legal matters this means that they were not part of the family of neo-Roman rights in its Roman canon outpouring during its conception and eventual formation, which prevailed in the Iberian Peninsula before the encounter between the Old and New Worlds.

After their emancipation, these countries fought unevenly to rescue one of their constitutive elements, reason for which law studies embarked on the course of recognition —or denial— of those elements in the process of building a State that would aspire to incorporate them —or not—. Along this train of thought, the study among the former kingdoms and provinces of the Indies concerning their legal past is not homogenous throughout the 19th century. It is in the second decade of the 20th century, shortly before Zavala incorporated himself fully in the task of researching American legal institutions, that the so-called "resurgence" of law history studies takes place.

The Argentine historian, Ricardo Levene, is the pioneer in the Americas to systematize the history of law of the Indies, incorporating it, during the 1920s, into the whole of a national legal history. This is the perspective was followed by several generations of law history scholars in Argentina and Chile.

There are not many other general works for teaching this field in the rest of the Americas, although there are some that focus on, for example, political or State institutions. However, to form a panorama that would allow the identification of models, and to place within them the work of Silvio Zavala, the work of the Peruvian law historian Jorge Basadre can be used for the sake of comparison, at least with another text of a general nature.

For this author, the history of Peruvian law is "the history of the judicial systems that have succeeded one another in the territory that today holds what is the Republic of Peru". This history is divided into three main parts: the Pre-Hispanic, which comprises the Pre-Inca and Inca cultures; the Colonial, which encompasses the conquest and viceroyalty, and the Republican, starting from Independence to the present. This author maintains that in order to explain the history of law, one must go to its most remote background, which in the case of Peru is the Pre-Hispanic era. Besides this assertion, Basadre refers to the law of the Indies as colonial and not of the Indies, which sets him apart from Argentine and Chilean authors.

The examples that have been given outline a classification for the works that have been produced on this subject in Latin America. There appear to be at least two models that explain the history of law during the colonial period. In the first, which we could place within the colonized countries, ties to Spain are closer and the history of Spanish law is seen as an important part of the local legal history, to which the use of the term "law of the Indies" to refer to the entire colonial period is added. This model could include the countries in which the relationship with the indigenous peoples was of little significance and a large part of what takes place begins with Spanish settlement. Such are the cases of Chile and Argentina, whose relationships with the indigenous peoples were different than those of Peru and Mexico. The latter, in fact, are representatives of the second model, which corresponds with the existence of advanced cultures in the time before the discovery of the Americas and in which colonization occurs after the conquest of the indigenous peoples. In these countries, on the one hand, the history of Spanish law is less important and only forms part of the national legal history in the degree to which it shaped a new legal system and influenced the local system of the indigenous peoples, still present in their territories today. On the other hand, the legal system en force while they were part of the Spanish monarchy is referred to as colonial and not of the Indies. In Peru and Mexico, indigenous rights form the foundation upon which Castilian law establishes itself giving rise to the so-called colonial period. As will be seen, besides the criteria mentioned above, there might be other reasons for choosing either road in the case of Mexico.

In Mexico, the history of law has not received the same attention as other areas of legal studies. If this has been the case with law history in general, the situation regarding the colonial period would be even more precarious. Save a few brilliant exceptions, Zavala among them, a good part of what was produced during that era has not been analyzed with academic objectivity, and until recently, authors held very different views derived from opposing ideological positions.

I do not know if all nations have had as hard a time as Mexico in defining their sense of self. The fact that its history has its origin and growth in two very different cultures, the trauma of the conquest, the difficulties in the creation of a State and the various armed movements that have interrupted the peaceful development of the institutions have been determining factors, although not the only ones, in the way that both the indigenous and colonial past have been seen from opposing angles during the highly obstructed formation of the State. The first to highlight this difficulty in Mexico was Toribio Esquivel Obregon a little more than a decade after Zavala had written his thesis on Los intereses particulares en la conquista de la Nueva España (estudio histórico y jurídico) [The Specific Interests in the Conquest of the New Spain (A Historical and Legal Study)] published in Madrid in 1933, and Las instituciones jurídicas en la conquista de América [The Legal Institutions during the Conquest of the Americas] and La encomienda Indiana [The Spanish-American Grant of Land], both published in 1935. Therefore, from different perspectives, Zavala and Esquivel Obregon were concerned with rescuing the colonial past. The latter was always interested in having the cultural roots of the Mexican nation studied in order to provide a safeguard against being overwhelmed by any legislative novelty. Always attempting to recover the colonial past, he did not deny the indigenous roots, as is evidenced in his book. In this same school of thought is the work of Silvio Zavala.

With what has been said, one can easily understand the difficulty in soberly analyzing law of the colonial period in Mexico, and with it, the importance of Zavala’s work in analyzing the penetration of Spanish thought in the Americas. In order to appraise his work, it is necessary to bear in mind that during the formation of the State in Mexico not only was Spanish heritage adversely judged, but so was the presence of an exacerbated nationalism in the period immediately following the Mexican Revolution. Furthermore, it must be added that all ties with Spain were severed in the 1940s when the Spanish Republic fell, which is precisely when a sustained development of law of the Indies begins in Spain and in some Latin American countries, though there had been isolated works during the first decade of the 20th century.

In regards to Mexico, it can be said that until a little more than twenty years ago there were not many law scholars who new exactly what law of the Indies was. After the Revolution, the Indies were not as present in our cultural horizon as the Indians because there was a cultural phenomenon that sought to recover what was "indigenous" in order to assert Mexican nationality and differentiate the nation’s cultural roots and particularities from what was "foreign". During the phase of revolutionary nationalism and the ensuing years, everything related to Spain was not much sought after as an object of knowledge.

Many of the scholars interested in analyzing the other source of Mexico’s legal culture did not even live in Mexico, having emigrated because of the Revolution. Things remained the same for almost two decades until around the 1940s when perhaps a handful of scholars, such as Silvio Zavala and Toribio Esquivel Obregon, began to look into colonial legal history. Though the latter wrote a general work like the ones mentioned in relation to other countries, it has been Zavala who has been most concerned with recovering the outline of Latin America’s colonial institutions, without setting aside the specific study of New Spain. Reviewing his work proves this assertion beyond any doubt.

The emigration of Spaniards after the Spanish Civil War began to modify the landscape. The stage of colonial legal history was enriched by the presence and the teaching especially of Jose Miranda, as well as of Javier Malagon. Rafael Altamira, who had already dealt with law of the Indies law when living in Spain, and although he died in Mexico, was too old to found a school when he arrived.

Two more decades were needed for everything related to the colonial legal past to become the object of a somewhat objective and consistent research. It could be that the presence of the exile community triggered a new way of seeing the mother country or perhaps it was simply due to a generational change. Although one can hardly speak of a burgeoning, it is a fact that there was a greater interest in the subject in the 1960s, when in other Latin American countries law of the Indies was broadly cultivated. Meanwhile, Mr. Zavala was already a renowned author in the field and some of his classic works circulated widely among specialists.

It would be appropriate to highlight the importance Silvio Zavala’s work and person had on the vindication of the colonial legal past. In Spain, he is among the precursors of institutions and law studies of the Indies and in the 1930s he was among the first authors to deal with colonial law issues. His vocation for the Indies began during his long stay in Spain. His doctoral thesis for law school on the private interests in the conquest of New Spain approaches this event from a social, legal and economic perspective. This work was written beside his mentor Altamira, a little after Levene had begun a systematic effort to recover the colonial legal past. From this moment on, many are the subjects concerning the Indies that attract Mr. Zavala’s attention. Among the most significant are: the institutions of the Conquest, the encomienda [land grants], colonization, and the school of thought of Vasco de Quiroga and De las Casas. On the other hand, in the 1940s he contributed to the foundation of the Centro de Estudios Históricos de la Casa de España, which later became the Colegio de Mexico, a warm place of refuge for Spanish exiles, many of which had been friends and acquaintances of his before the fall of the Spanish Republic. From there, he exerted a notable influence on the succeeding generations of historians that have graduated from that academic institution. This led Luis Gonzalez y Gonzalez to consider him "one of the leaders of the historiographical revolution of the 1940s which was born in the Historical Studies Center and in the Historia de las Ideas seminar at El Colegio de Mexico".

The little more than 25 years he spent in Europe dictated that Mr. Zavala not abandon, save occasionally, the focus that the investigation of the world of the Americas has had in Spain and Europe in general. An associate and friend to many of the most outstanding European historians specializing on the Indies, he shared an overall view with them without losing sight of the individual elements that compose it, which he attributes to Altamira. In Mr. Zavala’s work, however, one can observe a perception of the indigenous world that is not present in most works by European authors. His roots in the Americas manifest themselves in his sensibility for describing indigenousness during the colonial period, which has also meant his being labeled by Chavelier as the precursor for ethnohisotrians as well. Meticulous and methodical, he has collected hundreds, if not thousands, of documents of which he annotated with the greatest care. We find in this line of work, two of Mr. Zavala’s major works: the one concerning the regulation of labor and the one regarding Indian servitude in the New Spain. His works expose the student to the world of legal sources found in all types of documents, opinions of jurists and decisions from bodies that enforce the law; sources that tend to be absent from most overall views and monographic studies carried out by other specialists of the same era.

His legal background allows him to clearly distinguish the nature of the events he describes. He does not confuse figures and institutions as it sometimes occurs with historians lacking a rigid formation in law. To his pen and mind we owe the most clarifying work concerned with the Instituciones jurídicas en la conquista de América [Legal Institutions in the Conquest of the Americas], written in 1937, immediately before the analysis of Mexico’s colonial past by the Spanish exiles began in Mexico. Incidentally, unlike Jose Miranda, who upon settling in Mexico dedicated himself to the Mexican past, including the colonial period, throughout all these years, Mr. Zavala has maintained his interest in the Americas, and for the Indies in general, although often focusing on New Spain. This supranational view gives him a comparative perception, which in turn allows him to see the events throughout the different kingdoms and provinces of the Americas more completely and in greater detail.

Mr. Zavala has not only been a law historian, first of all because institutions have mainly been the object of his studies, but also because he has dedicated himself to social, cultural, and religious history as well as that of ideas and attitudes. He is a precursor in the study of many of these subjects that are now seen separately, and with his universal background, he has been able to cover them alone. His interests range from humanism to institutions; from the outstanding individual to the Indian most removed from the ceremonies and administration of the vice-regal court; from the colonial era to the Revolution; from the clergy to the bureaucrat; from the ideas and attitudes of the time to the specific and mundane. In other words, there is little that has not caught his attention in the years he has spent to the study of history. Removed from dogmas and fashionable trends, he has followed the path he laid out for himself when he began his academic work. As he himself said: "That Spanish education to study the European history of the New World has greatly influenced me because it is a very long and important period that has not always been approached well in general terms". An inspiration and open to the currents of thought from both sides of the Atlantic, Mr. Zavala has shown with his long and sustained effort that history can be seriously cultivated independently of where one is or of the non-academic activities one must carry out alongside academic ones. His calling towards matters of the Americas places him in a different position than most Mexican historians, who tend to dedicate themselves, at least as far as law history is concerned, to the New World phenomenon, also called colonial, and only rarely that of the Indies. A staunch supporter of the Indies by calling and formation, he has busied himself, in an exemplary way, with various aspects of the history of Mexico, a country with which he has been linked to personally and academically for decades. This is why the organizers of this Congress decided to take advantage of this gathering, all of us familiar with and followers of Mr. Zavala’s work, to pay homage, by means of this simple ceremony, to a life dedicated to the knowledge of history.

Notes
* This essay was prepared for the tribute the Academia Mexicana de la Historia [Mexican History Academy] paid to Mr. Silvio Zavala in 1994. It was published in Memorias de la Academia Mexicana de la Historia, Vol. XXXVII, Mexico, 1994, pp. 195-205. For its presentation at this Congress, I revised the writing; I extended certain issues and updated the information. In this same volume, works by Luis González y González, "La Academia Mexicana de la Historia y su decano", pp. 185-190 and by Enrique Florescano, "Notas sobre Silvio Zavala, historiador", pp. 191-194.
Translated by Carmen Valderrama.
** Researcher at the Legal Research Institute.