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Book Review
| Linda Lewin, Surprise Heirs, I: Illegitimacy, Patrimonial Rights, and Legal Nationalism in Luso-Brazilian Inheritance, 1750–1821, Palo Alto: Stanford University Press, 2003. Pp. 248. $55 (ISBN 0-8047-3881-5) and Surprise Heirs, II: Illegitimacy, Inheritance Rights, and Public Power in the Formation of Imperial Brazil, 1822–1889, Palo Alto: Stanford University Press, 2003. Pp. 397. $60 (ISBN 0-8047-4606-0).
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| Lewin's two volume opus is an elegant and erudite offering in Brazilian legal and political history. While not for the faint-hearted, this intellectually ambitious study rewards the discerning reader. Its great strength is its unflinching willingness to approach Brazilian legal and political cultures on their own terms. The complexities of this undertaking explain the need for two volumes. For Lewin has set herself a far larger task than merely tracing legislative debates over inheritance reform in early Imperial Brazil: she wants to do so against the backdrop of colonial Luso-Brazilian legal culture (volume 1), as well as situate those debates in relation to Brazil's encounter with ideological liberalism in the nineteenth century (volume 2). |
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From a purely legal-historical perspective, Lewin's story line is fairly straightforward. In volume 1, she begins with debates over inheritance and illegitimacy during the Pombaline reforms between 1750 and independence in 1822. Drawing on the minutes of the Brazilian parliament, volume 2 reconstructs the intense political wrangling that led legislators to set aside the long-standing acceptance of informal conjugal relationships, referred to broadly as mancebia, in favor of a narrower and Europeanized understanding of marriage and inheritance. As her close argument makes clear, these debates were deeply informed by a decidedly plural understanding of bastardy, by elite anxieties over Brazil's racially mixed population, by legislators' desire to rein in monarchical absolutism, and by the tension between what Lewin calls "legal nationalism" and an emerging sensibility that solutions to illegitimacy might be found in legal codes from beyond Brazil's historical, social, and cultural context. |
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Lewin's analytical framework squares nicely with the approaches of other, perhaps more familiar legal-political histories, but with a crucial twist. Her discussion lays bare the ways in which the legal history of Brazil, and by extension of Latin America more generally, has been the prisoner of a set of constraining assumptions rooted in the Anglo-American legal experience. She demonstrates, for instance, how the presumption of an unambiguous distinction between "legitimate" and "illegitimate" individuals, which is taken for granted in Anglo-American law, has warped thinking about the Brazilian context. North American scholars in particular, says Lewin, have been prone to take the Portuguese word "natural" as equivalent to the English word "illegitimate," when, in fact, the former did not necessarily imply a permanent legal identity, as the latter generally does. Throughout Brazilian history to the early nineteenth century, bastardy was reversible and consistent with succession rights. Ditto the scholarly focus on Brazilian wills. Anglo-American law assumes the centrality of a will, in the sense of an oral or written statement of intent, because succession is rooted in the principle of the inviolability of a testator's will, in the sense of volition. Not so in Brazil, "where intestacy, the natural order of succession, was the normal course of events." The methodological focus on wills, thus, has been at the expense of understanding Brazilians' overarching concern to ensure ab intestato succession. |
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These are fine points, but critical ones, for they are clues to what Lewin is after: a Brazilian legal history on Brazilian terms. As she points out early in volume 1, it is impossible to work with Brazilian archival documents on inheritance and succession without understanding the rules of heirship on their own terms. One would think this an obvious point, but such has been the power of the presumed naturalness of Anglo-American legal categories over the scholarly imagination that we need to be forcefully reminded of it. |
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The study also distinguishes itself as an experiment in the difficulties and rewards of telling the story of state formation in Brazil. Far from dry legal curiosities, legislative debates over illegitimacy and inheritance were platforms for contention over the meaning and limits of public power in Imperial Brazil. In volume 2 Lewin reaches beyond the bounds of a legal history narrowly conceived toward a legally grounded effort to confront the conundrums of liberalism during the first few decades of Brazilian independence. She argues convincingly that we cannot afford to see liberalism as a set of abstract clinical criteria that Brazil either had or lacked at any given point in its history. Put another way, it does not suffice to think of liberalism as an idea out of place in Brazil. Liberal reformers, at least in their own minds, as Lewin's evidence makes clear, were not merely crass manipulators of an ideology that served narrower interests—or if they were, not crasser than their European and North American counterparts—but people for whom large issues of social and political relations were at stake. Their debates were highly contingent and pregnant with irony, as Lewin shows. For instance, liberal reformers who opposed the Catholic church's corporate power, found themselves defending Tridentine marriage as a way of simultaneously exerting control over the church and cutting into mancebia, even though some of them would have preferred civil to religious marriage. |
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Lewin's accomplishment is to allow these very concrete debates to speak to broader historiographical concerns. The core of her larger account is how the widely recognized "popular voice" in favor of mancebia was politically overridden by the narrower category of European marriage. This is where the contrast with colonial legal culture is starkest. It is also where the legal history of Brazil is most obviously distinct from Anglo-American assumptions. Indeed, Anglo-American legal historians keen to problematize the relationship between liberalism and law would do well to read this study. Latin American historians will find in Lewin a brief favoring a more rigorous and probing engagement with the concrete practices, cultural preferences, and philosophical assumptions underlying law in Latin America. Finally, Surprise Heirs goes to the issue of how to achieve a more nuanced understanding of the fate of deep-rooted elements of Latin American culture vis-à-vis Europeanizing tendencies of elites. Perhaps this a story best recounted through Lewin-like concreteness, rather than airy theoretical discussion. One might wish Lewin had been more explicit in this regard, but maybe she is right to leave this koan to the meditations of individual readers. |
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| Brian Owensby
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| University of Virginia |
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