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Book Review
| M. C. Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America, Austin: University of Texas Press, 2004. Pp. xiii + 343. $45.00 (ISBN 0-292-70232-9).
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| M .C. Mirow has set himself a difficult task, to contribute a one-volume introduction to Latin American law in English, and he has succeeded admirably. His work clearly supersedes the old standard, Karst and Rosenn's 1975 combined casebook and treatise, which reflected the "law and development" movement's belief that inadequate legal systems were to blame for the region's economic instability and social inequality (see Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America: A Case Book [Berkeley and Los Angeles: University of California Press, 1975]). Mirow is far less prescriptive and more balanced in his approach and has benefited from many fine empirical and theoretical studies over the past thirty years. He exceeds his modest goal of providing "an essential platform of institutional and mostly autonomous legal history on which more critical legal history may be constructed" (xi) by integrating general historical background and his own interpretations into the project. |
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Latin American Law focuses on private law in Spanish America, omitting Brazil and such topics as torts and tax where monographic support is insufficient. After a brief discussion of pre-Conquest indigenous legal structures, Mirow explicates how the Spanish colonizers used courts, legal education, lawyers, sources, and substantive law both to exploit the New World economically and to evangelize the native inhabitants—often inconsistent objectives. He recapitulates this topical organization when showing how Spain's empire dissolved in the nineteenth century and the independent republics adopted codes based on French and U.S. models in order to accommodate pressures for land alienability and freer commerce; personal status reforms were generally resisted by conservative forces. Carrying the story into the twentieth century, Mirow emphasizes how innovative constitutions such as Mexico's broke from foreign patterns and moved towards more equitable land distribution and greater autonomy for women. He observes that the thrust of social reform has slackened as late twentieth-century governments have embraced the mantra of international open markets and domestic privatization. |
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The book wraps up four and a half centuries of legal evolution with a balanced assessment of the oft-noted distance between the written law and its enforcement. Mirow acknowledges the problem, but eschews the law and development school's slant of indicting "the gap" for every societal ill. He incorporates recent theories that legal rules are aspirational rather than literal and that the gap serves as a device to advance legal change. |
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A minor weakness of Latin American Law is that it is primarily descriptive, being essentially an extended bibliographic essay rather than an exposition of original research or a novel theory. Mirow does not purport to offer more than a survey: phrases such as "[m]uch work is needed to add depth to the general hypothesis suggested here" (170) typify his tone. Yet he does weave in his own perspective that Spanish American private law "constructs and reflects political power, economic power, and social structures" (xiii). He thereby avoids the law and development movement's pitfall of minimizing the importance of legal doctrine and institutions. Mirow's analysis is well-informed, if not always as frequent as the reader might like. |
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A more substantive omission is coverage of water law and environmental issues generally. Valuable studies of regional ecological conflicts, including litigation over water and other resources, are available in a recent two-volume collection (see Bernardo García Martínez, et al., Estudios sobre historia y ambiente en América, 2 vols. [México, D.F.: El Colegio de México, 1999, 2002]). Discussion of these matters would have complemented Mirow's treatment of the status of indigenous people and of land rights, as well as his broader point about the legal legitimation of power. |
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These lacunae notwithstanding, Latin American Law is the most comprehensive work on its subject to date. Mirow masterfully summarizes the bulk of monographic research while still supporting his view that "legal mechanisms ... have too often served the powerful and placed the poor on the periphery of law" (241). He skillfully differentiates among the various national legal systems, most notably in the case of Cuba's socialist institutions, but ultimately finds commonality in sources and in private law's current (though not ideal) function of preserving economic, political, and social stability. For scholars, teachers, and practitioners of Latin American law, Mirow's book will be the new authoritative reference. |
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| Peter L. Reich
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| Whittier Law School |
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