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In memory of Víctor Tau Anzoategui (1933-2022)

One of the greatest legal historians of his generation, the Argentine Víctor Tau Anzoátegui passed away on June 11th, 2022. He was born in 1933 and graduated as a lawyer at the University of Buenos Aires in 1957, defending his doctoral dissertation at the same university in 1963. Tau’s immense significance reaches into many fields of legal history, from Spanish colonial law and early modern legal history in general to the national legal past of his native Argentina. His works are read all over the Hispanic world and, recently, increasingly in other parts of the world as well.

Tau is internationally best known as a historian of Spanish colonial law (or derecho indiano, as it is often called in Spanish). As a field of research, derecho indiano was originally a construction of the Argentine Ricardo Levene, whose Introducción al estudio del derecho indiano (1916) was the foundational work of the discipline. In the 1930s, 1940s, and 1950s, other scholars such as Rafael Altamira, Ots Capdequi and Alfonso García-Gallo carried the torch forward. García-Gallo, together with Alamiro Ávila-Martel and Ricardo Zorraquin Becú founded the Instituto International de la Historia del Derecho Indiano (IIHDI) in 1966.  The study of Spanish colonial law ever since largely revolved around the conferences and publications of IIHDI. For decades, Víctor Tau has been a leading figure in its activities. 

A remarkable feature in Tau’s scientific career was his breath-taking capacity of thinking out of the box. He was constantly critical about established truths and, at the same time, also of his own thinking. His Casuismo y Sistema (1992, reprinted in 2021) is major contribution to early modern legal and the shift from casuistic to systematic thinking. Another highlight, Tau’s discourse at the IIHDI congress in Buenos Aires in 1995 involved a thorough rethinking of derecho indiano. In his habitual gentle manner, Tau challenged the traditional way of seeing law as mainly a phenomenon of state hegemony. Instead, normative creativity appeared on many other levels of society as well. To understand this wider concept of normativity, legal historians needed more than traditional textual sources: “a legalist culture [needed] to be substituted for a juridical culture” (“reemplazar la cultura legalista por la cultura jurídica”). This would enable scholars to see law as part of the social system surrounding it. Furthermore, Tau identified neglected areas of research in need of attention. They included the history of the legal profession, letrados, and book history. Provincial and local legal histories needed more work as well, as so far much of scholarly work had concentrated on the metropolis. The presentation was published as a book (Nuevos horizontes del Derecho Indiano, 1997), which has impacted the study of Spanish colonial law during the recent decades greatly.

Tau was very much of a public figure in Argentina. Among other honors, he was member of National Academy of History (Academia Nacional de Historia de la República Argentina) and served also as its president. Until his last years, Tau remained active in research. The global community of legal historians will greatly miss him.

 

Some of Víctor Tau Anzoátegui´s major works:

La codificación en Argentina (1810–1870): Mentalidad social e ideas jurídicas (Buenos Aires 1977)
Casuismo y Sistema: Indagación histórica sobre el espíritu del Derecho Indiano (Buenos Aires 1992)
La ley en América hispana: Desde el descubrimiento a la emancipación (Buenos Aires 1992)
Nuevos horizontes en el estudio histórico del derecho indiano (Buenos Aires 1997)

El poder de la costumbre: Estudios sobre el Derecho consuetudinario en América hispana hasta la Emancipación (Madrid 2000)

(See also Thomas Duve & Heikki Pihlajamäki (eds.), New Horizons of Spanish Colonial Law: Contributions to Transnational Early Modern Legal History (2015), and its “Introduction” by Duve & Pihlajamäki). The book resulted from a conference arranged in Berlin in honour of Víctor Tau.)
 

Heikki Pihlajamäki: Presenting the CoCoLaw-project

The Project will provide a comparative account of how early modern colonial laws of England, the Dutch Republic, Spain and Portugal evolved. We set the colonial laws in two important contexts. First, the colonial laws are set in context of medieval and early modern European law. Laws applied in the colonies partly followed the medieval tradition of ius commune and (as for Britain) common law. This was the case of most civil, procedural, and criminal law. In these branches of law, colonial law did not radically differ from the law in Europe. However, law in the colonies also followed the latest legal trends, and the growth of police regulation did not leave colonies untouched. Police regulation was, both in Europe and overseas, the main legal instrument with which modern states were governed. Police regulation formed the essence of what we normally conceive as colonial law. The project charts the growth of police regulation at both imperial, regional, and local levels.

Second, the Project sets the colonial laws in a comparative context. This includes the early modern powers traditionally defined as colonial powers (England, the Dutch Republic, Portugal, and Spain) in close context with the other European empires expanding at the same time (Sweden, Russia). The Project also systematically compares early modern overseas legal orders and their use of police regulation with each other. The Project seeks to demonstrate how the legal strategies of the colonizing nations developed into different directions and why.

Apparently, the differentiation followed from the differences in the interests that England, the the Dutch Republic, Spain, and Portugal had overseas. The Dutch and the Portuguese saw their colonies overwhelmingly in terms of trade. For the Dutch, the East India Company (to which the Dutch Republic had “outsourced” its colonial operations) and for the Portuguese, slave trade were sources of huge income. The Portuguese and the Dutch aimed, first and foremost, at securing their trade routes more than at permanently occupying large tracts of lands. These empires invested relatively little on colonial administration and law, and more on a communications network. The strategies also changed, as the Portuguese examples of Brazilian captaincies from the mid-sixteenth century onwards and the New Conquests (Novas Conquistas) in the hinterland around Goa in the mid-eighteenth century show.

Whether to invest on territorial conquest and the heavy legal infrastructure it required, or trade networks and “law light” depended surely on human, financial, military resources as well. Suffice it to mention that the population of Portugal in 1530 was 1,4 million, whereas that of Spain had reached almost 6 million.

Furthermore, the comparative context necessarily involves considering the different levels of cultural resistance of which local populations were capable. The legal circumstances into which, for instance, the Spaniards in America and the Dutch in Far East Asia introduced their law were extremely different.

Police regulation was, both in Europe and overseas, the main legal instrument with which modern states were governed. Police regulation formed the essence of what we normally conceive as colonial law. The project charts the growth of police regulation at both imperial, regional, and local levels.