LAUSR

This article advocates a critical reading of the historiography of land rights in earlymodern Spanish America. The main argument is that since the 1940s’ tradition of the derecho indiano, rights to land have been understood fundamentally under the anachronistic idea of private property. This has become increasingly problematic in more recent historiography, which focuses on the intersection of indigenous and Spanish land relations, presented as a conflict between individual and collective notions of property. While this emphasis on the ‘cultural’ differences of ownership and tenure representations is certainly important, more often than not it rests on the assumption that historians know much more about the European worldview than the indigenous worldview. And though this may be true of the archive available to the historian, which reveals the vision of the Spanish conquerors more than that of the indigenous populations of America, the dichotomous representation of land relations as a difference between European and indigenous-American cultures has constructed a blind spot for historical research: the focus on the otherness of indigenous modes of land tenure and use has led historians to neglect the otherness of the normative order that regulated land relations within the framework of the European ius commune. From a twenty-first-century perspective, both indigenous and Spanish representations of land tenure are incommensurable with our contemporary notions of land, property, and rights. The anachronistic reading of the law of the early modern period began in the nineteenth century with the beginning of the theoretical and institutional separation of the public from the private (Blaufarb 2016). The radical transformation in legal thought that began with the rise of private law was reflected, unlike in any other legal category, in the institution of possession. Within the emerging legalist framework, jurists struggled to make sense of possession as the actual holding of a thing: if only the owner had the right to possess a thing, how could mere possession be a basis for rights? This question addressed the difficulty of explaining why the law protected possession regardless of whether the possessor was the owner or not: ‘if the possessor who is not the owner is acting without right, the law is protecting the will to do something wrongful’ (Gordley and Mattei 1996, 298). As James Gordley and Ugo Mattei argue, nineteenth-century legal scholars were unable to provide a satisfactory answer to the tensions posed by the