From Communal Property to Liberal Property
The project “From communal property to liberal property. The legal system of property in Cordoba (1871-1885)” attempts to understand the legal-historical aspects that enabled the continued existence of indigenous communal property in times of codification and, at the same time, to understand what role the Civil Code played within the process eventually leading to the demise of indigenous communal property in Cordoba.
The starting point of the project is the agreement concerning the persistence of elements from colonial legal culture throughout the nineteenth century. Within these continuities one form of traditional property, “indigenous communal property”, remained in force in Cordoba until the end of the nineteenth century. It is also important to stress that the Argentinian Civil Code was passed in 1871, which meant, among other things, the establishment of one common system of acquisition, constitution, and transfer of rights in rem and specifically the right of domain. If one considers, on the one hand, the relation between the codification and the idea of rupture with the Ancient Regime, and, on the other, the relation between codification and liberal property, the analysis of the legal system of property regulated in the Civil Code becomes a very important aspect to understand, at least partly, the persistence of indigenous communal property.
Through the study of the process of the modernization of property, this project attempts to understand which legal-historical aspects that permitted the survival of one specific type of traditional property, namely, indigenous communal property. The following questions will be central to the investigation: Was the Argentinian Civil Code paralyzing the continuity of the traditional legal system? Was there a change of legal order? Up to what point in time was the traditional property system valid?
Although the study of the system regulated via the Civil Code is crucial, other aspects have also contributed to the construction of the legal system of property in Cordoba toward the end of the nineteenth century: The state form, the configuration of the territorial national state (both national and provincial), and the legal jurisdiction.
Taking this into account, the construction process of modern property as well as the study of the survival of indigenous property will be addressed through the interaction of (sometimes conflicting) spheres of normative production: “the national and the provincial”. This federal dimension is justified by the implication of the state form in the legal system. In this context it is important to mention that the system of acquisition and transfer of rights in rem regulated by the Civil Code was a system called “Título y Modo”. This system was modified through the establishment of the registration of property by law N589 in the territory of Cordoba.
Another central element was defining the extension of territorial space of the national state regulated in 1862 by national law N 28. One of its dispositions established that all the territories beyond provincial limits would be considered national territories. Thus, the need to define ‘provincial space’ arose.
Starting in 1862 one can observe that in Cordoba the legislation and the establishment of institutions, such as the Topographic Department, Cadastral Register, and Register of Properties, had an impact on the property system. In this context, the sciences and professions related to this development of “a new state territorial knowledge” took on a leading role, for instance, in surveying.
Based on the dialogue between Civil Code and the provincial institutions and legislations, this project will reconstruct the legal system of property applicable in Cordoba. The next step consists in the analysis of the last competent judicial authority to interpret and apply the new legal order of the Civil Code. According to Law N 48 “Jurisdicción y Competencia de los Tribunales Nacionales”, the last judicial authorities were the supreme provincial courts. This means that the supreme provincial courts were not only able to interpret the Civil Code, but also the provincial legislation on property, which sometimes was against the dispositions of the Civil Code. In other words, until 1909, the Supreme Court of Justice of Argentina was considered the last judicial authority to interpret the Civil Code.