“Custom’s Longue Durée: Local Justice and Jursdictional Politics
in 19th Century Oaxaca”
Yanna Yannakakis, Emory University
This paper is about customary law, local justice, and jurisdictional politics in Oaxaca’s
indigenous communities during the first half of the 19th century. The relationship of custom to
Indian jurisdiction and state-centered law has gotten considerably more play in the historiography
of Latin America’s colonial era than that of the 19th century given that custom had its origins in
medieval Castilian law, and was adapted to the administration of justice in the Americas through
derecho indiano, the body of laws that governed Spanish America. This is not to say that
historians of the 19th century have ignored the role of custom in Oaxaca’s indigenous
communities; to the contrary. Peter Guardino and Karen Caplan – in conversation with the work
of Antonio Annino and Carlos Sanchez-Silva -- have written compellingly about a social contract
between elites and non-elites in Oaxaca underwritten by a compromise between custom and state
law that helps to explain continuities between the colonial and republican eras in matters of local
governance. They argue that this political syncretism undergirded the development of “local
liberalisms” and popular political culture with sharp colonial inflections. More recently, with
strong attention paid to the central place of Catholicism in local political culture Benjamin Smith
reinterprets this social pact as “provincial conservatism.” I find this both curious and telling. The
histories that I cite are meticulously researched and compellingly argued. So how does one
interpret the interface of custom and state-level politics as local liberalism in one instance, and in
another as local conservatism?
My paper suggests that this historiographical stalemate points to problems inherent in the
application of terms like “Liberalism” and “Conservatism” to the local political orders established
in indigenous communities during the first half of Mexico’s turbulent 19th century. Part of this
has to do with chronological framing and political teleology. Many of these studies begin
sometime between 1750 and 1812. In this scheme, the last decades of the colony provide a
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backdrop for a period of change initiated by the Bourbon Reforms and catalyzed by the Spanish
Constitution of 1812, which culminate in a fledgling liberal (or conservative) order. The other
problem concerns the way in which the political arena is defined: the making of legitimate
authority at the level of the indigenous municipality and its interface with state-level institutions
and ideologies. I argue that we need to make room for law and legal culture. For two and a half
centuries of colonialism, indigenous communities were both semi-autonomous political units and
legal jurisdictions. As such, they developed a set of practices and relationships based on legal
procedures and notions of justice that shaped their relationship with state-level institutions.
My paper makes the case that to understand the place of custom in the changing legal and
political landscape of the early nineteenth century, we must apply a wider chronological frame
that stretches back to the early colonial period, where custom first took shape in Indian litigation.
I argue further that we need to sidestep republican politics as our primary arena of analysis, and
analyze custom in the context of the courtroom and the colonial legal tradition. After all, it is the
legal record – civil and criminal disputes over land, office holding, and abuse of authority, among
other local conflicts – that provides much of the grist for our histories of 19th century political
culture. Instead of thinking about custom in conversation with liberalism or conservatism – that
is, in 19th century political terms -- what if we were to conceive of it instead in legal terms, as a
strategy whose meaning changed over time in relation to local conditions and changing legal
definitions? Might this approach afford us greater purchase on the defining political
characteristic of Oaxaca’s indigenous communities over time: their profound and abiding
localism, based on their “diverse customs”? And might an analysis grounded in debates over
legal pluralism, plural notions of legality, and local ideologies of justice allow us to access an
arena of local politics about which we know comparatively little: communal justice?
To answer these questions, I analyze ten civil and criminal cases from the Oaxacan
jurisdictions of Villa Alta and Teposcolula from the 1810’s to the 1840’s in which the litigants
explicitly engage custom. My analysis puts three historiographies into conversation: the literature
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on 19th century political culture cited above; ethnohistories and legal histories of custom during
the colonial period; and finally, the comparative literature on law and empire and colonial legal
cultures over the longue durée, from roughly 1500-1950. I argue that the persistence and
reformulation of custom and communal justice in Oaxaca’s indigenous communities through the
early nineteenth century was deeply grounded in the jurisdictional politics of the colonial period:
venue shopping and the playing of one jurisdiction off another. Jurisdictional jockeying and
other colonial era legal practices, such as the pooling of communal resources for litigation and the
granting of power of attorney created both vertical and horizontal relations among indigenous
communities and broker figures like apoderados and interpreters. In these ways, colonial legal
culture conditioned both communal justice and the regional political order of the early nineteenth
century.
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