Native Contracts: Indigenous Custom and the Spanish Laws of Obligation in 18th-Century Oaxaca, Mexico

My paper analyzes how Ñudzahui (also known as Mixtec) communities capitalized on the Spanish Crown's land titling program -- the composiciones de tierras -- of the early eighteenth century to produce laws that modified their jurisdiction, created bonds of obligation with their neighbors, and established social hierarchies during a period of intense change. They did this through genres of social contracts derived from the Aristotelian, and later, scholastic concept of pactum societatis (social pact), which shaped medieval and early modern Spanish political thought and contract theory. Rather than regulate economic transactions between parties with antagonistic interests, these consensual contracts -- known in the Roman Law tradition as "societas" and in Spanish as “compromisos” and “convenios” -- instantiated legally binding ties centered on partnership for a common purpose. The contracts' emphasis on bonds of obligation allowed native communities to canalize relationships rooted in the yuhuitayu, the Ñudzahui expression of socio-political and territorial organization, into new forms. Since contract law, referred to as “the laws of obligation,” was not well-developed in the laws of the Indies, native authorities and colonial judges turned to Spanish medieval law and the ius commune (European common law), both based in Roman law, to formalize local practice via contract. These contracts, which served as local law until challenged or overturned, expand our view of the legal repertoire available to and developed by native people. Through the legal agency of their officials and representatives, native communities participated in broad forms of identification and social action whose costs and burdens were shared unequally; agreements, after all, can coerce. The laws of obligation of medieval Spain allowed native authorities to move strategically between agreement and conflict, and social harmony and exploitation as they responded to mounting demographic, economic, and political pressures.