Legal Fiction, Gender, and Early-Modern Spanish Law

Judicial practice in the early modern Spanish empire poses a set of significant problems for scholars looking to criminal and civil proceedings for evidence of normative social practices. A central feature of the Spanish legal inheritance was a centuries-long accrual of often-contradictory, labyrinthine, and esoteric legal corpus. As legal codes were understood, essentially, as expressions of royal will, and therefore inalienable, they continued to claim legitimacy hundreds of years after their promulgation– reaching back as far as the Justinian Code of the sixth century. Adroit litigators and their learned attorneys exploited the inconsistencies and jurisdictional confusions inherent in the legal corpus to great effect.

Layered atop the formalized codes (the Siete Partidas, the Leyes de Toro, the Nueva Recopilación de Castilla, the Leyes de Indias, etc.), Spanish legal practice recognized the primacy of local customary legal practices, known as derecho vulgar. Under certain circumstances, derecho vulgar was codified through the establishment of fueros (legal charters), usually drawn between the crown and a municipality, kingdom, or corporation, that specified a body of legal obligations for both parties. This was not, however, always the case. Customary practice, even when not recognized through fuero, still held jurisdictional and legal authority, and often formed the most significant vector in discretionary judicial decisions. 

In part, the primacy granted customary practice in the Spanish legal system was a function of the need to perpetuate legal fictions for the smooth operation of the complicated jurisdictional and jurisprudential problems magistrates faced on a daily basis. Because the legal system was maintained on a system of accrual, and therefore lacked any immediate means to invalidate centuries-old legal standards, judges were willing to break the rules by ignoring legal restrictions that were tactically necessary to ignore.

The practice goes a bit beyond the classic observation on early modern Spanish legislation– that the presence of a legal prohibition is the best evidence of a practice’s ubiquity. The perpetuation of legal fictions before the court calls into question many of the normative truisms associated with Spanish colonial rule.  The example I am most directly concerned with is that of women’s legal identity. Several strictures from the Siete Partidas and on into the Nueva Recopilación de Castilla require a married woman to acquire license from her husband to make legal acts of all kinds, but particularly to appear as a primary litigant before the court or to make contracts. In the closing decades of the 18th century, I’ve tracked many hundreds of cases involving women as primary litigants before the city magistrates of Quito. In approximately 70% of those cases, no license is ever claimed or requested. While one would expect this could be the case if the vast majority of female litigants were widowed or single (categories exempted from the requirement), married women often acted autonomously. But, most litigants never recorded their marital status in their petitions.  Was this an oversight by the notaries? Were there mostly unmarried women (most of whom had children) in the city? Maybe.  It seems just as likely, though, that the lack of notated marital status contributed to the construction of a temporary legal fiction in which the female litigant was freed from the strictures of the law by simply omitting those elements of her place in society that would have prevented her making legal acts.


Associate Professor of Early Latin America Department of History University of Tennessee-Knoxville

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Hacer juicio ú dictamen acerca de alguna cosa... significando que el objeto excita el juicio ú dictamen en la persona que le hace.

Deducir ante el Juez la accion ú derecho que se tiene, ó las excepciones que excluyen la accion contrária.

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Chad Black

I, your humble contributor, am Chad Black. You can also find me on the web here.
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