Indian Law: Origins and Evolution in the New World
Indian Law: Origins and Evolution
Indian Law refers to all the provisions that were applied in the Indies. This new legal framework included:
- Rules created specifically for Peninsular India.
- Rules created by Castilian authorities aimed at the Indies.
- Castilian law, which applied as subsidiary law in India.
- Practice, jurisprudence of the metropolitan court and Creoles.
- Doctrine of metropolitan and Creole jurists.
The first rules passed for the Indies were the Stipulations of Santa Fe in 1492. In this agreement, the Catholic Monarchs and Columbus established the terms for distributing benefits from the lands to be discovered, as well as the offices and honors that would be bestowed upon the Genoese. This marked the beginning of a practice commonly used until the mid-16th century, where individuals capitulated or agreed with the Crown on the terms under which their ventures would be developed.
Initially, Castilian law was transferred en bloc to the new frontier. However, it soon became apparent that Castilian laws were inadequate or unsuitable for the new developments taking place in India. Consequently, specific rules for the New World emerged, giving birth to Indian Law, inspired by Castilian Law.
Charles I attempted to reorganize the Indian institutional apparatus. The result was the enactment in 1542 of a legislative body called The New Laws. These laws not only regulated key institutions but also addressed conflicting assignments of Indians.
Both Indian Law itself and native Indian Law emerged as an adaptation of Castilian Law to the Indian reality. In this sense, the laws of Castile served as a kind of general law, while Indian Law was the proper law.
The application of Indian Law always prevailed over Castilian Law, even in cases of contradiction. In principle, any order issued for Castile had immediate application in India, unless there was a specific provision of Indian Law, in which case it would always prevail. The specialized nature of Indian Law was accentuated after 1614, when Philip III ordered that only those provisions that received the placet of the Council of the Indies and were released by it through a Royal Warrant would be enforced in the New World.
It soon became evident that the Indigenous population was not able to understand the complicated Castilian legal system. Therefore, starting in 1555, they were allowed to continue to be governed by their ancient customs, as well as new ones, provided they did not oppose religion. This limitation was extended a century later to include provisions contained in the compilation of the Laws of the Indies in 1680.
Customary law played a major role in legal life. This phenomenon also occurred popularly, sometimes as a result of trying to adapt existing rules to situations not covered by them, and other times due to the unavailability of the entire legislation in India. Finally, it was also popularized by the lack of technical and legal knowledge of the proper officers and the shortage of lawyers. Therefore, we can speak of the existence of a common Indian Law.