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Max Planck Studies in Global Legal History of the Iberian Worlds

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Max Planck Studies in Global Legal History of the Iberian Worlds Knowledge of the Pragmatici Max Planck Studies in Global Legal History of the Iberian Worlds Editor Thomas Duve The volumes published in the Max Planck Studies in Global Legal History of the Iberian Worlds are dedicated to the legal histories of areas which have been in contact with the Iberian empires during the early modern and modern periods – in Europe, the Americas, Asia and Africa. Its focus is global in the sense that it is not limited to the imperial spaces as such but goes beyond to look at the globalisation and localisation of normative knowledge within the spaces related to these imperial formations. It is global also in another sense: The volumes in the series pay special attention to the cultural translations of normative knowledge in different places and moments, decentering classical approaches on legal history and opening up new perspectives on the production of normative knowledge. All of the monographs, edited volumes and text editions in the series are peer reviewed and published in print and online. Brill’s Open Access books are distributed free of charge in Brill’s E-Book Collections and can be found via DOAB, OAPEN and JSTOR. volume 1 The titles published in this series are listed at brill.com/ mpiw Knowledge of the Pragmatici Legal and Moral Theological Literature and the Formation of Early Modern Ibero- America Edited by Thomas Duve Otto Danwerth LEIDEN | BOSTON This is an open access title distributed under the terms of the CC-BY- NC 4.0 license, which permits any non- commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. Further information and the complete license text can be found at https:// creativecommons.org/ licenses/ by- nc/ 4.0/ The terms of the CC license apply only to the original material. The use of material from other sources (indicated by a reference) such as diagrams, illustrations, photos and text samples may require further permission from the respective copyright holder. Cover illustration: Lemma “Pragmatici”, in Johann Kahl, Magnum Lexicon Juridicum, Köln 1759, vol. 2, 301 (Photo: Thomas Duve); “Escrivano de cabildo nombrado de Sv M[agesta]d, quilcay camayoc”, in Felipe Guaman Poma de Ayala, El primer nueva corónica y buen gobierno (1615/1616), 814 [828] (Det Kongelige Bibliotek, Copenhagen). Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov LC record available at https://lccn.loc.gov/2020005908 LC ebook record available at https://lccn.loc.gov/2020005909 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill- typeface. issn 2590- 3292 isbn 978- 90- 04- 42162- 2 (hardback) isbn 978- 90- 04- 42573- 6 (e- book) Copyright 2020 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re- use, use of parts of the publication, and/ or translations must be addressed to Koninklijke Brill NV. This book is printed on acid- free paper and produced in a sustainable manner. Contents Preface vii List of Illustrations x Notes on Contributors xii 1 Pragmatic Normative Literature and the Production of Normative Knowledge in the Early Modern Iberian Empires (16th–17th Centuries) 1 Thomas Duve 2 Putting Roman and Canon Law in a Nutshell: Developments in the Epitomisation of Legal Texts between Late Antiquity and the Early Modern Period 40 Christoph H.F. Meyer 3 The Circulation of Pragmatic Normative Literature in Spanish America (16th– 17th Centuries) 89 Otto Danwerth 4 Presence and Use of Pragmatic Legal Literature in Habsburg Peru (16th– 17th Centuries) 131 Renzo Honores 5 Jesuit Pragmatic Literature and Ecclesiastical Normativity in Portuguese America (16th– 18th Centuries) 151 Gustavo César Machado Cabral 6 Managing Legal Knowledge in Early Modern Times: Martín de Azpilcueta’s Manual for Confessors and the Phenomenon of Epitomisation 187 Manuela Bragagnolo 7 Pragmatic or Heretic? Editing Catechisms in Mexico in the Age of Discoveries and Reformation (1539– 1547) 243 José Luis Egío vi Contents 8 Producing Pragmatic Literature in the Third Mexican Provincial Council (1585) 282 Osvaldo R. Moutin 9 Shaping Colonial Behaviours: Franciscan Missionary Literature and the Implementation of Religious Normative Knowledge in Colonial Mexico (1530s–1640s) 296 David Rex Galindo 10 “Just Rules” for a “Religiosity of Simple People”: Devotional Literature and Inquisitorial Trials in Cartagena de Indias (17th– 18th Centuries) 328 Pilar Mejía 11 Forensic Practices and the “History of Justice” in the 17th and 18th Centuries: a View from a Spanish American Periphery 350 Agustín Casagrande Index 379 Preface For a long time, the legal history of early modern colonial Ibero- America has focused on royal legislation, law treatises or other legal sources from the Ibe- rian tradition and, more recently, from ius commune. In the last two decades, there has been an impressive growth of research in the ‘History of Justice’, with important contributions from social and cultural history, usually concentrat- ing on court practice and local law. That historiography, however, did only rarely take into consideration a topic, which is crucial for understanding the formation of Ibero- American normative orders between the 16th and 18th cen- turies: the use of normative knowledge, specific practical reasoning and nor- mative practices from the religious field. It has also failed to examine system- atically a literary genre that we call ‘pragmatic normative literature’, meaning those books written for the orientation and use of legal practitioners, crown of- ficials, or for persons in charge of the cura animarum, the missionaries, priests, and other office- holders in ecclesiastical institutions. Our book builds on the hypothesis that this ‘pragmatic normative literature’, in particular the strand that refers back to the tradition of moral theology, can be a key to an important dimension of colonial legal culture: the formation of colonial normative orders through the legal and normative knowledge from the religious field. This literature, which has received scarce attention also in Eu- ropean legal history, has special significance and functionality not only in the remote frontier context of the early modern empire. It was used in the colonial centres and it accompanied missionaries, but also laymen, to regions where no crown official could take office. It contained the basic moral precepts of early modern society and dealt with many aspects which are commonly considered ‘legal’: contracts, usury, property, crime, responsibility, etc. As Thomas Duve shows in his introductory chapter, these texts – such as manuals for confessors, catechisms, and moral theological instructions – and their importance have to be understood as part of a specific historical formation, the 16th and 17th century Ibero- American regime of production of normative knowledge. They allowed localisations and cultural translations and enabled erudite as well as non- erudite actors to teach and enforce the moral and legal obligations, codes of conduct and world visions both to the local indigenous and to the European population. They represent an important source for explaining the complex construction of the colonial normative order, and they are key to understand how a basic ‘normative literacy’ emerged that made communication about normativity possible, not least between the different groups and peoples living in the vast territories occupied by the European invaders and settlers. viii Preface The book brings to light not just the practical significance and functionality of this genre, but also its intellectual weight. Despite its perceived ‘popular’ nature, pragmatic literature does not merely represent – as is often assumed – a form of vulgarisation; on the contrary, it reflects conscious and considerable works of abstraction. In order to analyse this and to better understand how normative knowledge was condensed, we refer to the phenomenon of ‘epit- omisation’ – an intellectual procedure well known in Roman and canon law from late Antiquity to early modern times, as explained in a chapter written by Christoph Meyer. The longue durée perspective is crucial for understanding early modern pragmatic literature, fruit of a scholarly practice deeply rooted in medieval practices and, at the same time, undergoing important transforma- tions due to media change and European expansion. While the two initial contributions of the volume are dedicated to meth- odology and overarching legal historical perspectives, a second group of arti- cles deals with the presence of pragmatic literature in Ibero- America. After a chapter on the European exportation and dispersion of pragmatic literature in different parts of Spanish America (Otto Danwerth), two contributions discuss the distribution and use of pragmatic literature in broad regional perspectives both for the Andes and for Brazil. In a chapter on Habsburg Peru, Renzo Hono- res stresses the relevance of these normative
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