Legal organizations and roles

The organizations of the Chilean law are one of its first evolutionary acquisitions. The first Chilean legal organization was the cabildo (council). This arises along with the foundation of Chile in 1541 and it was in this instance that the first authorities in the new territory were appointed. This was a representative organ of the new colonists

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and Santiago was established for the first time as the capital in the same day of its foundation.

The origins of the Judicature are confused with those of the nationality. In March 1541, before a month of the foundation of Santiago, the oldest city of Chile, the first ordinary courts were instituted: the mayors of the nascent population, bearers of the real pole of the justice. (Bravo Lira 1996: 32)

The cabildo had multiple administrative and economic functions, from the care of the public works and common goods, up to the organization of small militias or the announcement of the time by means of serenos (night dews) (Campos Harriet 1956:

64). The cabildo had the administration of justice in its territory and the application of the Spanish laws among its functions: “In every city a cabildo is established which is integrated, among others, by two mayors. These mayors are ordinary judges of first instance inside the city” (Bravo Lira 1986: 86). This organization model was designed in Spain and its application was ordained to the colonies along with the foundation of the cities. The authority of the cabildos came from Spanish laws, specifically from the functions and powers conferred by the so-called

“capitulations” to the conquerors, which, however, should establish a special figure for the administration of justice by means of the cabildos and its mayors. Along with the capitulations was a set of “instructions” (Eyzaguirre 2006: 132) that specifically pointed to the political and religious obligations of the conquerors.

(The) capitulation of conquest and discovery is a bilateral contract, by which the entrepreneur, future discoverer, pact with the Spanish crown. It is a written document. By the capitulations mutual obligations and laws are contracted. Thus, the entrepreneur, the conqueror, has the faculties to discover, colonize, distribute lands and plots, erect forts, provide charges and public offices, govern the uncovered region, found cities, towns, rivers. (…) It can be said that they were the bridge over which the Spanish institutions and customs passed to America.

(Campos Harriet 1956: 56).

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The cabildos constitute one of the most stable legal organizations in the evolution of Chilean law, since the Chilean legal tradition is inaugurated with them in the sixteenth century, and by these means, three centuries later or in the nineteenth century, independence from Spain was declared. But legal life was not only limited to the cabildos. While the organization of the justice at this time is “confusing,” as Campos Harriet noted (1956: 66), the same author points out that three general levels can be distinguished: a first instance justice administered by the mayors or governors, a second instance justice by the Real Hearing of Chile, and finally the superior justice of the Council of the Indies residing in Spain.

Any assumption regarding a supposed equality of the colonists in front of the cabildo should be dismissed. Although these were guided by the principle of the ‘common good’, they were also an expression of the power of the local aristocracy (Villalobos 2011: 68). This aristocracy was formed by the legal-economic figure of the encomiendas, which distinguished between those who owned lands granted by the crown from the rest, who were called simply “inhabitants.” Those who were receiving real incomes from Peru, were holders of “pensions placed on the encomiendas of other neighbors,” “spears and muskets” paid by the king, men of war, landowners, big traders, and also artisans and minor shopkeepers (Góngora 1951:

181). This principle of stratification is also applied in the form center/periphery since the colonization presupposed the centralization of the administrative functions (including justice) in the foundation of “cities” (Góngora 1951: 69; 1975).

The cabildo establishes the first roles and legal responsibilities and thus begins the legal development of Chile. This has a high importance because Chilean law first appears as a result of an organization with defined roles. Therefore, the Chilean law is, from its origin, structured in organizations. This has caught the attention of legal historians, specially the ancientness and stability of the legal organization, which would have been a mainstay of the formation of the State of Chile (Bravo Lira 1996:

20ff.). Indeed, the changes of the organization of Chilean law shows changes to be rather cumulative and of transference of functions. The biggest change occurs at the

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beginnings of the nineteenth century, along with the independence from Spain, with the suspension of the Real Spanish Hearing as the supreme court of the territory and the beginning of the development of Chilean judicial organizations. This autonomous process continues during the nineteenth century and at the end of this century, there are administrative acts relative to the courts and to the administration of justice (Campos Harriet 1956: 562; Eyzaguirre 2004: 152ff.). During the twentieth century a higher specialization of courts happens, together with the dictation of new acts relative to commerce, mining, work, etc. (Eyzaguirre 2006: 207ff).

The early foundation in 1738 of the first Chilean university, the University of San Felipe, was the first step in the formation of Chilean lawyers. Law, medicine, philosophy, theology, Latin, and mathematics were taught. Distributed in four faculties, the university conferred the degree of doctor in theology, jurisprudence and canons (licensed), in medicine and mathematics, but “it was primarily a School of Law” (Campos Harriet 1956: 47f.). That is, the organizational development of Chilean law can be observed not only in the regular functioning of its courts, but also in activities of the universities, which began in the eighteenth century and had an additional impulse with the creation of the University of Chile in the late nineteenth century.

As previously noted, Chilean law does not arise spontaneously and based on customs, but is established by the Spanish colonial power before the aboriginals.

Chilean law is, this way, a law embedded in organizations and within them it finds its niche and reproductive capacity. In this period of the evolution of Chilean law, there is no “living law” in the sense of Ehrlich (1989: 409ff.), since the decisions, the operative and binding law, were in the hands of organizations of law.