Custom Today: Temporality, Customary Law, and Indigenous Enlightenment

Abstract

So stated the native officials of the Zapotec pueblo of Santa María Yaviche, Oaxaca, in 1760. What they meant will become clearer at the end of this article; for now, their words invite us to ask: How can there be a different legal custom today? Isn't custom supposed to be invariable over time? Isn't the point that it is not new, but old? Indeed, whether revealing that a tradition was invented or tracing a practice's perdurance, historians have told us that the power of customary law is precisely that it is above time, that it can defy obsolescence and, as such, resist modernity. 2 Custom is distinguished not so much by its historical nature as by its ahistoricity. 3 This article examines three exemplary instances of intracommunity civil disputes in eighteenth-century Spanish America to spotlight a turning point within native invocations of legal custom. Indigenous litigants living in the Spanish empire embedded multiple temporal schemata in their conceptions of costumbre (custom). Two of these temporal frames, which we might gloss as The author thanks the editors and two anonymous readers for HAHR, as well as Kunal Parker and Yanna Yannakakis for astute readings of this article. 1. ''Juan Ló pez principal del pueblo de Santa María Yaviche se queja de que los naturales de su pueblo lo quieren despojar de las garantías de las que gozan los principales,'' 1760, Archivo del Poder Judicial de Oaxaca (hereafter cited as APJO), Villa Alta, Civil, leg. 17, no. 16, fol. 28v. 2. J. G. A. Pocock, in Ancient Constitution, 14, argues that customary (common) law's power hinged on the fact that it can ''never become obsolete'' because it can always harken to a vague origin in ''immemorial'' time-a well-worn phrase familiar to any historian using Spanish legal documents. 3. By this, I mean in the conceptualization of historical actors and, to a degree, in scholarly renderings of non-Western and/or past legal systems as static and different than more historicized, ''modern'' systems. As Sally Falk Moore puts it, ''The very concept of 'customary law' has legitimating implications.'' Moore, ''History and the Redefinition,'' 277. On the historiographical split between those who historicize legal systems and those who portray them as possessed of an essential identity, see Parker, ''Repetition in History.''

Manumission, custom, and the laws of slavery and freedom in Latin America

“…It could be a source of law in the absence of legislation or could substitute written law if circumstance required it 8 . As Premo (2014) and Premo & Yannakakis, 2019 have pointed out, custom was a key part of the legal system, rather than village law (the case in North America, according to Edwards, 2009). In early modern juridical thought, the legal system was conceived as an instrument for managing conflict, rather than as one designed to apply standard rules cross‐contextually (Herzog, 2004).…”

“…In the 19th century, in the Americas, when custom was invoked, the speakers did not always refer to a deep past. Rather, they pointed to recent precedents, accepted behaviors, the witnesses' and litigants' moral standing, expectations for how contracts should be drawn, moral values (Premo, 2014; Chira, 2018). Elites and non‐elites across Latin America fought to control its content into the Age of Emancipation.…”

“…Custom's versatility suggests that even though it occupied a privileged status within the Spanish judicial system, its boundaries were unclear. As Premo (2014) has pointed out, we should not assume that custom was a static monolithic legal category referring to unchanging traditions, which is how metropolitan legal reformers of the 18th century portrayed it. In the 19th century, in the Americas, when custom was invoked, the speakers did not always refer to a deep past.…”

“…Yet, across Latin America, many jurists did not concur with their Iberian counterparts, and defended custom as a key source of law on grounds that it was more locally fitting than positive law. Local elites felt that they could better control the reins of power through it (Chalhoub, 2011(Chalhoub, , 2015de la Fuente, 2007;Grinberg, 1994;Premo, 2014). In the end, governments did gradually produce more positive law regulating the enslaver-enslaved relation (Guzmán-Brito, 2011;Grinberg, 2019Grinberg, [2002).…”

Guardianes de la real justicia: alcaldes de indios, costumbre y justicia local en Huarochirí colonial

“…57 Taylor 2008: 136. 58 Graubart 2007: 158-195;Premo 2014;y Yannakakis 2010. 59 La relación de Dávila Briceño define a los «camachicos» como «cabezas de parentelas y de pueblesuelos antiguos» (Jiménez de la Espada 1881, I: 67).…”