The influence of colonialism in South American jurisdictions

When discussing colonization and its impact, many overlook the influence of legal imperialism on South American judicial systems. Spanish and Portuguese colonists brought their language, culture, religion, and governmental systems to their colonial territories in South America. For the first 300 years of these territories’ development, they were under colonial rule. This period included legal imperialism, where the legal authority of an empire was extended into colonial states. Legal imperialism meant that all other forms of law or legal authority in that territory were restricted. As a result, European colonization inevitably had a lasting influence on South American judicial systems. Understanding this influence is a crucial step towards contextualizing and solving the shortcomings of South American Law.

A complex inheritance of legal imperialism is the fragmentation of legal systems. First and foremost, it is important to consider that indigenous populations had various informal legal systems. According to an article by Louis C. Faron, there is archaeological evidence of informal laws about land use and ownership. Several indigenous communities also had laws regarding the responsibilities of community members in maintaining irrigation systems. Then, another form of law was introduced in numerous countries, when land was divided up among aristocratic farmers. These farmers imposed their own personal law over their land. A general informality in law was maintained for decades if not centuries. As colonies developed, more Spanish and Portuguese law was imposed. For centuries, a significant portion of the continent has experienced the coexistence of legal systems with varying levels of outreach and influence. Indeed, only in the last century and a half have countries like Colombia and Brazil established an overarching system. Since this has been such a recent phenomenon, the legal systems of South American countries are fragmented and lack coherence compared to most European countries. Consequently, the legal navigation in South America is challenging for both individuals and corporations. The lack of coherence and uniformity catalyzes a plethora of uncertainties, discouraging foreign investors in the region.

One example of this problem can be seen in contract enforcement, which is often a complicated process in many South American countries. This results in a major hurdle for companies to operate successfully and efficiently. For instance, the world bank reported it can require up to four years for a contract to be enforced through courts in Brazil. This can be especially difficult for foreign investors who are inexperienced with the legal system and may lack the means to understand the complicated landscape. The lack of uniformity in the legal system is far from the only reason for the slow procedural pace, but it is undoubtedly a contributing factor.

Additionally, Legal imperialism and religious imperialism are intrinsically tied. As John F. Schwaller stated in his article ‘The Church in Colonial Latin America’, “The Catholic Church was undoubtedly the single most important institution in colonial Latin America... (It) controlled all aspects of life from birth, through marriage, until death.” Many South American nations have remained Catholic states long after receiving independence, including Colombia, Brazil, Argentina, Uruguay, Paraguay, Bolivia, Venezuela, Ecuador, and Chile. To this day, Christianity is apparent in the values and conceptions of these nations’ civil codes. One example is the idea of marriage as a legal act. Only in the 1960s and 1970s was divorce permitted in Brazil and Bolivia. In the 1980s, it was legalized in Argentina, and in 1992, it was legalized in Colombia. Remarkably, divorce did not exist in Chile until 2004.

The movement towards permitting divorce in South America comes centuries after the same act in countries like France, England, and the United States. Interestingly, Spain permitted divorce in 1981, and Portugal in 1910, also much later than the previously mentioned nations. The religious and cultural ties between these two countries and their colonies undoubtedly influenced their tendencies in lawmaking. This is especially true when considering that the very conception of marriage was entirely different in indigenous populations prior to the influence of Portuguese and Spanish colonists. In many communities, marriage was not bound to law or religion at all. Hence, many of the religious values brought to South America in the colonial times, remain present both in culture and in law today.

Moreover, many South American countries have inquisitorial legal systems. According to a study by Dammer and Albanese, “The inquisitorial process grants more power to the judge who oversees the process, whereas the judge in the adversarial system serves more as an arbiter between claims of the prosecution and defense”. In other words, judges in inquisitorial legal systems actively participate in fact-finding public inquiry by questioning defense lawyers, prosecutors, and witnesses. They are granted the power to order certain pieces of evidence to be examined if they find presentation by the defense or prosecution to be inadequate. It is not uncommon for these judges to assess material by police and consult with the prosecutor prior to the trial. Predictably, Spain and Portugal also have inquisitorial legal systems.

The inquisitorial legal system has several benefits, according to an article by Renée Lettow Lerner, "it may be more accessible to individuals without legal representation or those who cannot afford private attorneys". That being said, it also has major pitfalls. For instance, the adversarial system provides safeguards such as the right to a jury trial, the right to confront witnesses, and the right to remain silent, which are not necessarily guaranteed in the inquisitorial system. Moreover, if judges play an active role in the investigation, their personal biases can become more influential. It is not the purpose of this discussion to determine which system is better, but rather to illustrate that South American nations inherited a system rather than constructing or choosing one.

Ultimately, the overwhelming influence of legal imperialism can be seen in the fragmentation of the legal system, the presence of catholicism, or the imposition of an inquisitorial civil law system. The aforementioned aspects are only a few of the many ways in which contemporary law in South America is impacted by a history of colonization.

Marina Santos P Silva

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