Between 1812 and 1835, first the Cádiz and then Mexico's own federalist Constitutions remade the Mexican justice system as the country transitioned from what Águeda Venegas de la Torre calls the ‘estado jurisdiccional’ of the colonial era – in which judges had wide margins of discretion to interpret the law in accordance with local custom – to a liberal ‘estado de derecho’. Venegas writes about that transition in Zacatecas, a state known at the time as a hotbed of radical political experimentation. After independence, Zacatecan lawmakers picked up the Cádiz project of encoding the liberty, security, property and (legal) equality of Mexicans within formal legal procedures. For example, all criminal suspects were henceforth to be charged with a crime – and apprised of that charge – no later than 60 hours after being arrested. Jail cells were to be sanitary. No longer would Mexicans languish in damp dungeons for spurious reasons.
Such was the ideal. But how did the administration of justice change in practice? Venegas largely accepts the traditional answer to this question, which is that it did not change much at all. Carlos Fuentes once wrote that Latin America was divided into a ‘legal country’ and a ‘real country’ (Valiente mundo nuevo. Épica, utopía y mito en la novela hispanoamericana, Fondo de Cultura Económica, 1990, pp. 194, 287) – that the institutions designed for the preservation of the law did little to structure the lives of most Latin Americans. Venegas sees a similar division. She argues that in early-nineteenth-century Zacatecas there was a republican system of justice, staffed by legal professionals and represented by the state's Supreme Court of Justice, and there were the practices of the old regime, no longer legal but still kept alive by municipal mayors who also acted as lay justices. It was of course the mayors, or lay justices, and not the professionals on the Supreme Court, who became the face of the law to a vast majority of Mexican citizens.
There is a sense in which Venegas’ conclusions undermine the relevance of her topic. Why, after all, should historians interest themselves in a realm of endeavour that left its mark only on a minute circle of lettered enthusiasts? Venegas deals with this problem astutely, by making it part of her plot. To a significant extent this is a book about lawmakers’ attempts to make the new legal system socially relevant. One such attempt was a failed project to adopt a republican civil code, meant to eliminate the room judges had for exercising judicial discretion. Another was the use in the 1820s of a small number of professional ‘assessors’ who were to review all cases in their final stages, ensure that proper procedures had been followed and advise lay justices on appropriate sentences. An 1829 plan to go one step further and replace lay with professional judges was badly planned – regulations delineating the new judges’ functions were never written – and seems to have led more to confusion than to an improved administration of justice.
But were lay justices really as stuck in the past as Venegas makes out? Based on her reading of judicial files, Venegas describes lay justices as inefficient, biased, easily manipulated, cavalier with suspects’ procedural right and driven more by customary notions of justice than by the strict letter of universally applicable laws. But while Venegas’ attention to on-the-ground legal practice is welcome, there are too many problems with her approach to make these conclusions convincing or even at all plausible. In the space of this review I can do no more than indicate those problems. To begin with, Venegas’ distinction between ‘liberal’ and ‘customary’ law – the first precise and egalitarian, the second vague and discretionary – is far too rigid. All law stands in need of interpretation, and modern common-law jurisdictions leave space for judicial discretion without thereby giving up on liberal notions of procedural fairness.
Venegas also measures lay justices’ legal practice not against what came before – she presents no research on the colonial period – but rather against some timeless ideal of liberalism. She thus documents the shortcomings of lay justices in an ideal but not in a historical sense. Even when she writes about the constitutional period, furthermore, Venegas’ analysis is more impressionistic than systematic. In various places she cites single legal cases to support broad conclusions. (She sometimes goes on to claim that she has found other, similar cases in the archives, but fails to cite them (pp. 63, 78, 81–2).) Lastly, Venegas shows no interest whatsoever in cases in which lay justices did in fact follow the new, liberal legal standards associated with the constitutional era, even though it can be inferred that such cases also existed. She discusses judicial files only when they support her conclusions.
What the book ultimately shows is that there were instances in which lay justices failed to follow the new legal standards of the Cádiz and federalist periods. Whether these instances were representative, and whether, or how much, the administration of justice in Zacatecas experienced a transformation at the municipal level, are not questions that can be answered based on the evidence presented in the book.
Unless, that is, you are willing to accept the sentiments of Zacatecas’ lettered elites as an answer. For it is on the evidence of these sentiments – and not of the few legal files she chooses to discuss – that Venegas most consistently builds her argument: she describes the state of justice in Zacatecas such as the elite saw it. What the elite saw was country bumpkins making a mockery of the republican legal system. Lay justices, according to a congressional committee, came to their judicial duties from ‘the simple work of cultivating the land to which they usually devote themselves out of a natural obligation’ (p. 141). They ‘[committed] many excesses, putting in jail whoever they please after capturing them with yells and offensive words that only the forbearance of those indigenous people can tolerate’ (p. 79). It is expressions like these that form Venegas’ primary evidence. A generation of historical studies has placed such expressions in their proper historical context, revealing them, at least in part, to stem from patrician anxieties about the unprecedented claims for voice and inclusion that new political actors made during and after the War of Independence. But Venegas pays no attention to this literature. Instead, by treating the sentiments of Zacatecas’ lettered elite as uncomplicated descriptions of fact, she contributes to a baleful tradition of transforming the prejudice of Mexico's rich and powerful into authoritative historical accounts.
As an argument about the administration of justice in early-nineteenth-century Zacatecas, this book mostly falls flat. As an account of elite ideas, anxieties and frustrations triggered by the transition to a new legal system, on the other hand, it is empirically rich and frequently insightful.
