On Upholding Justice

“Señor Ricaurte, you are a cuckold, a grocer, and a potter.”

I found this text far more fascinating than I had any right to. I picked it up thinking it’d be a nice legal history to get a sense of the situation on the ground in Latin America, only to be surprised to see how shoddily jerry-rigged the entire system was. From what I can gather from Herzog’s writing, this does not seem like something that was limited to the city (or even audiencia) of Quito or Latin America as a whole. Instead, it seemed to have consumed the entire Spanish legal system, and perhaps that’s true elsewhere.

Tamar Herzog tells us that her thinking of this book began with a simple question: How did early modern European societies manage to have states? Their institutions were weak, they were poor, they lacked coercive power, and the distances necessary seemed impossible to cross quickly enough to make a difference. On this, Herzog realized she was thinking about it the wrong way. The scholars who work on state formation usually fall into one of two camps: those who argue that modern states evolved out of small polities that emerged in the Middle Ages and gradually grew, and those who argued that states did not even exist until the 19th century—while there were legal systems in place, these were hardly enough to call polities “states.”

While I’m not sure on her own personal views, I get the sense that Herzog falls into the second camp. In her view, the big problem is that there was no distinction between “public” and “private” in the early modern period, making it impossible to define what fits into the state and what does not fit into a state. Power was usually held at the personal level, and justices and officers often gained power through nepotism and quickly factionalized, refusing to think about the law in “objective” terms. This is usually pointed as an example of corruption, perhaps leading to widespread corruption in Latin America today, but Herzog disagrees. While corruption surely existed in Latin America and Spain, it was more through paying off customs officers for trade. The entanglements in Quito’s legal system cannot be called “corruption” because there simply was no distinction between “private” and “public” personage.

Throughout the text, she discusses the ways that officers gained their positions, the importance of officers and judges within their societies, factionalization, the importance of rumor and reputation in court proceedings, and other concerns of image. This is really interesting stuff that speaks a lot to the debate on Euro-American state formation.

I’m impressed—although this was her first published book, it reads more like a second or third book. It’s a must-read for those interested in the history of state-building and law.