[xvii] Litigiousness, the readiness to settle disputes and conflicts in court, has often been cited as one of the unique features of Western civilization. Scholars of traditional China and Japan, for example, have drawn attention to the West's penchant for lawsuits, comparing it with Eastern societies, where out-of-court conciliation, as opposed to adjudication, was the customary mode of settling disputes. ⁽¹⁾ This comparison is not entirely fair. In the West, as in China, most disputes, even in periods when litigation was increasing, were arbitrated out of court, generally with the help of a village elder, influential nobleman, or priest. For centuries, dispute settlement out of court remained the ideal; lawsuits, noted for their cost and complexity, were decidedly second best.

Despite the similarities, however, the West's experience with litigation has been very different from that of the East. Statistical comparisons are wanting, but neither China nor Japan ever appears to have been so deeply entangled in lawsuits as Europe, particularly in the course of the last five or six hundred years. Lawsuits were pursued in both of these countries, but litigation per se never became ubiquitous nor did it call into being a legal profession as large and sophisticated [xviii] as that of the West. ⁽²⁾ Nor did Eastern potentates develop complex institutions specializing in the administration of justice; instead, rulers relied principally upon military and other nonlegal institutions to enforce their power. Consequently, adjudication was never given an opportunity to become a routine method of resolving disputes.

The West's peculiar reliance upon lawsuits has a number of possible explanations. Litigation is largely a function of law, especially private law that guarantees individuals certain inalienable privileges and rights. In the Orient, private law scarcely existed, and its absence implied that all disputes, no matter how trivial, automatically lay within the public realm. Owing to a tradition of phenomenalist thought, every dispute among humans simultaneously disrupted the natural order and harmony of the universe and, consequently, called for punishment by public authorities. Recourse to law, therefore, necessarily ended in the assignation of guilt and punishment to one of the parties involved. In this respect, the law itself discouraged the formal adjudication of disputes. Also militating against the proliferation of lawsuits in Eastern societies were laws that punished those who incited lawsuits or who profited from their management. The legal profession, in both China and Japan, thus remained underdeveloped and never acquired much substantial power or prestige.

By contrast, in the West, the concept of ius, first elaborated by the Greeks, guaranteed every individual certain natural rights. Among these were such basic freedoms as the right of an individual to regulate his own affairs (which is the basis of the law of contracts), protection against unwarranted interference by the state, and the right to dispose of private property. The chief responsibility of positive or human law (lex) was to protect these natural rights. These concepts contributed to the development of an extensive corpus of private law that found its way into Roman law, canon law, and the law codes of most European states. This highly developed concept of individual [xix] rights was also instrumental in establishing a division between a civil wrong and a criminal one, a distinction the law codes of the Orient lacked. Elaborated first in the Twelve Tables of Roman law (ca. 450 B. C.), this distinction was somewhat clouded in the early Middle Ages by Christian emphasis upon sin, but reemerged with the "discovery" of Roman law in the eleventh and twelfth centuries. ⁽³⁾ Subsequently, it helped to foment the litigation that sets Western civilization apart from that of the East. It is no accident that throughout western Europe during the Middle Ages a complex legal profession arose that claimed expertise in the law and based its livelihood upon helping others take their disputes to court. ⁽⁴⁾

Litigiousness, therefore, was a function of a world view that placed greater emphasis on individual rights than on individual responsibilities. The rise of a market economy in the twelfth and thirteenth centuries created new reasons for lawsuits, just as the centralized monarchies that emerged in the course of the Middle Ages sought to channel these cases into courts staffed by men of their own choosing. The purpose of these tribunals was to establish a rule of law, implemented and guaranteed by the ruler, and simultaneously to undercut the power of local authorities, particularly the landed aristocracy. Adjudication, therefore, was a service provided to promote loyalty. In the process, however, litigation also became a function of politics, and the continuing efforts of rulers to augment their authority gradually created the institutional framework that enabled the lawsuit to become a permanent fixture of European life.

The result of this peculiar combination of law, economy, and state-building was a civilization immersed in the details of legal process. It is odd, therefore, that studies of litigation, lawsuits, and litigants in European history should be so few. ⁽⁵⁾ One reason for this lack is that [xx] historians have traditionally concentrated upon the institutional development of courts and tribunals but have ignored their day-to-day work. Dramatic lawsuits have often occasioned detailed study, but the routine process of litigation itself has not. ⁽⁶⁾ Consequently, the extent and the character of litigation in past centuries and, more important, its relationship to economic, social, and political conditions remain practically unknown. Similarly, although historians of Europe's landed elite have long recognized that litigation was often crucial in determining the state of a family's finances, few have studied the details of a family's lawsuits. In sum, our understanding of the place of litigation in European history remains sharply limited, and our knowledge of what litigiousness meant is embarrassingly slim.

The present inquiry, restricted to an examination of Castilian litigation between 1500 and 1700, is an attempt to shed some light on the importance of lawsuits in that society. I intend to explore the beginnings in this southwestern corner of Europe of what might be described as a "legal revolution" or an age in which the formal adjudication of disputes was sharply and dramatically on the rise. Castile was not the first European state to experience such a "revolution." The litigiousness of the medieval church prefigured that of secular society, and by the fourteenth century litigation was already commonplace in the city states and republics of northern Italy, the bailliage courts of France, and the great central courts of London. ⁽⁷⁾ Castile, therefore, entered the litigation game relatively late, but Castile is [xxi] nevertheless remarkable for the degree to which litigation in the course of the sixteenth century became something of a habit for peasants and nobles and merchants alike.

Admittedly, Castile's "legal revolution" did not begin overnight. In the Middle Ages, Castile, owing partly to the existence of the Moorish frontier, was dominated by a military way of life. ⁽⁸⁾ Commerce, especially in comparison with Italy and the north of Europe, remained underdeveloped and primarily local or regional in scale. Monarchical government was slow to develop until the great reconquests of the mid-thirteenth century, when the kingdom was extended southward from the Tagus River to the Straits of Gibraltar. In less than a generation, the kingdom doubled in size and in population, developing a need for new policies, governmental methods, and techniques. Seizing the initiative, Alfonso X attempted to implement a uniform law code that would further the process of judicial centralization, but the kingdom, headed by the powerful nobility and the cities represented in the Castilian Cortes, resisted. During the next century, a centralizing monarchy and forces attempting to preserve their traditional autonomy were engaged in a tug-of-war. But in the course of this struggle, new institutions of royal government gradually emerged. At the end of the fourteenth century, specialized legal tribunals such as the audiencia (or provincial high court) had been established, although it took another century before a professional royal judiciary was firmly in place. By then, rapid economic development, rising literacy, the proliferation of lawyers, and the emergence of strong [xxii] monarchical government brought lawsuits, as opposed to other, often more violent, forms of dispute settlement, into their own.

Part I of this study is principally concerned with the economic, social, legal, and political changes in Castile that, beginning in the second half of the fifteenth century, precipitated a sharp increase in the overall volume of civil litigation, accompanied by a widespread interest in legal study, the development of a sophisticated legal profession, and the expansion of the royal judiciary. Part II is an attempt to explain why, beginning in the second quarter of the seventeenth century, Castile's "legal revolution" ran out of steam, leading to an apparent decline in litigation, retrenchment in the law faculties, and stagnation of courts and tribunals that had flourished in an earlier, more litigious age.

Such a pattern, as even beginning students of European history will immediately recognize, fits neatly with the rise and fall of the Spanish empire itself. The concordance is not purely coincidental. Spanish expansion in the fifteenth and sixteenth centuries was primarily the result of an active, aggressive monarchy interested in exploration, trade, and, eventually, colonization. Spanish imperialism in the sixteenth century is also best attributed to the personal religious and political interests of the Habsburg dynasty, rather than to those of Castile's merchants, who received only marginal benefits from the Habsburgs' involvements abroad. Conversely, imperial decline in the seventeenth century, although partly caused by Castile's economic and demographic decline, was principally the result of the monarchy's failure in the reign of Philip IV (1621-65) to break with the costly imperial policies of the past. Similarly, monarchical policy strongly influenced patterns of Castilian litigation. Aggressive rulers in the late fifteenth and sixteenth centuries, anxious to enhance their own power, made it a special point to channel conflict into royal courts, but their successors, Philip III, Philip IV, and Charles II, were content to allow much of this power to slip through their hands. Thus, in the seventeenth century, litigation in the king's courts diminished sharply. Some of this business was transferred to municipal and seigneurial jurisdictions, but nevertheless the extreme litigiousness of the sixteenth century was a thing of the past as such other modes of dispute settlement as out-of-court arbitration with the help of lawyers came to the fore.

[xxiii] Castile's history with respect to the decline of litigation may be exceptional, although a number of studies of lawsuits in modern Europe have suggested that litigation is no longer as important as in the more distant past. ⁽⁹⁾ Castile's experience with litigation, therefore, might serve as a useful starting point for the study of lawsuits in other parts of preindustrial Europe. A wealth of information concerning litigants is readily available, and the relation of litigation to economic and political developments, education, lawyers, and social change is well illustrated. Furthermore, a study of Castle's courts offers an invaluable introduction to the legal tradition which Spain, beginning in the sixteenth century, exported to the New World.

Legal history, especially in the hands of lawyers, is best characterized by its overriding concern with institutional developments, self-congratulatory praise of the legal profession, and preoccupation with the finer points of law. Such history I am not interested in writing. My own view of legal history approximates that of an American historian who has written that "legal history is a chapter of social history, not a self-contained entity." ⁽¹⁰⁾ Accordingly, my aim in this study is to write about Castilian law only insofar as it is important for understanding my principal concern, which, as the title indicates, is lawsuits and litigants. I approach litigation not from a legal perspective but from a social and political one, viewing it principally as one of several methods by which disputes and conflicts are eventually resolved. My intention, therefore, is to write not legal but social and political history, and in the end the most I would hope to accomplish is to relate changing patterns of litigation in Castile's courts to the changing fortunes of Castile itself and to develop more fully our knowledge of how legal institutions during the antiguo régimen actually worked. I would also like to point out that this study is concerned [xxiv] only with civil litigation. Crime and criminal law are here discussed only in passing, partly because these subjects have been examined elsewhere. ⁽¹¹⁾

Litigation is not a popular topic among historians, and it is one I stumbled upon only inadvertently. Six years ago, this work began as a study of the letrados of Castile, the law graduates who played a formative role in Habsburg government on both sides of the Atlantic. In the initial stages of this research, I realized that historians were busy writing the prosopography of lawyers and judges, but paid relatively little attention to what advocates, attorneys, and judges did. Gradually, my focus shifted from letrados to lawsuits, a subject about which the existing historical record, in Spain as well as in other countries, provided little in the way of methodology. Consequently, I began to look to anthropology and sociology for ways of approaching this subject, and the present inquiry owes much to these disciplines.

More than pages, however, people have helped to shape the progress of my research. Through endless discussions with colleagues, students, relatives, and friends, this book gradually took shape. I am especially grateful to my brother, Robert A. Kagan, whose inspiration and encouragement were essential to the progress of my work. Others to whom I owe special thanks include Lewis Bateman, John Bossy, John H. Elliott, José F. de la Peña, André-Philippe Katz, Alfonso de Otazu, Geoffrey Parker, Orest Ranum, Harry Sieber, and Michael Weisser. Aid and assistance were also provided by the directors and staff of the Spanish archives in which most of the research for this project was carried out. In particular, I wish to thank the condes de Bornos, duques de Alba, Alburquerque, Frias, and Medinaceli, marquises de Castelar, and vizcondes de Peñaparda, each of whom graciously allowed me access to their family archives. In Spain, the Casa de Velázquez unfailingly offered me lodging when all other Madrid hostelries were full, and Andrés Raposo, together with his family, has given me a store of memories I shall never forget. Financial aid for this project was generously provided by The Johns Hopkins University in the form of sabbatical leave and The Institute for Advanced Study (Princeton) in whose comfortable surroundings I was able to begin the writing of this book.

1. See S. van der Sprenkel, Legal Institutions in Manchu China (London, 1962), p. 113; D. F. Henderson, Conciliation and Japanese Law, Tokagawa and Modern (Seattle, 1965), pp. 173-75.

2. My understanding of law and litigation in the Orient is based upon D. Bodde and C. Morris, Law in Imperial China (Cambridge, Mass., 1967); Jerome A. Cohen, "Chinese Mediation on the Eve of Modernization," California Law Review 54 (1966):26-54; Colin A. Ronan, The Shorter Science and Civilization in China (Cambridge, 1978), 1:272-306; Sprenkel, passim; and T'UNG-TSU CH'U, Law and Society in Traditional China (Paris, 1961). For Japan, see Takaaki Hattori, "The Legal Profession in Japan: Its Historical Development and Present State," in Arthur Tylor von Mehren, ed., Law in Japan (Cambridge, Mass., 1963), pp. 111-52; Henderson, passim; and Richard W. Rabinowitz, "The Historical Development of the Japanese Bar," Harvard Law Review 70 (1956):61-81.

3. Among the many studies of law in the Middle Ages I have relied principally upon Stephan G. Kuttner, Harmony from Dissonance: An Interpretation of Medieval Canon Law (Latrobe, Pa., 1960); Gabriel Le Bras, Prolégoménes: Histoire du droit et des institutions de l'église en occident (Paris, 1955); and Sir Paul Vinogradoff, Roman Law in Medieval Europe (London, 1909).

4. On the birth of Europe's legal profession, see Carlo Cipolla, "The Professions: The Long View," Journal of European Economic History 2 (1973):37-52.

5. The most comprehensive historical study of litigation remains J. M. Kelly, Roman Litigation (Oxford, 1966). Studies for more recent epochs are limited to J. S. Cockburn, A History of English Assizes, 1558-1714 (Cambridge, 1972), pp. 136-40; John A. Dickinson, "L'activité judicain d'après la procedure civile. Le Bailliage de Failaise, 1668-1790," Revue d'histoire économique et sociale 84 (1976):145-68; J. F. Pernot, "L'activité de la Chambre des Comptes de Paris a l'epoque moderne," Revue d'histoire moderne et contemporaine 26 (Oct.-Dec. 1979):612-37; and my own "Pleitos y poder real: La chancillería de Valladolid, 1500-1700," Cuadernos de investigación histórica 2 (1978):291-316. Recent examples of litigation studies in American history include Thomas L. Haskell, "Litigation and Social Status in Seventeenth-Century New Haven," Journal of Legal Studies 7 (1978):219-42, and Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler, "The Business of State Supreme Courts, 1870-1970," Stanford Law Review 30 (Nov. 1977):121-56. See also Bernard Schnapper, "La litigiosité en France aux XIX^e siècle," Annales E.S.C. 34 (fevrier-mars 1979):399-419.

6. A good example of how much can be learned from a close study of a single lawsuit is John B. Owens, "Despotism, Absolutism, and the Law in Renaissance Spain: Toledo versus the Counts of Belalcázar (1445-1574)" (Ph.D. dissertation, University of Wisconsin, 1972). Owens employs the "trouble case" method pioneered by Karl Llewellyn and E. A. Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman, Okla., 1941).

7. For more on litigation in the medieval church, see R. Southern, Western Society and the Church in the Middle Ages (London, 1970), pp. 110-17. Another slant is provided by Stanley Chodorow, "Dishonest Litigation in the Church Courts: 1140-98," in Kenneth Pennington and Robert Sommerville, eds., Law, Church, and Society: Essays in Honor of Stephan Kuttner (Philadelphia, 1977), pp. 187-206. The activity of courts in the late Middle Ages is evident in the rapid growth and development of the legal profession. For France, see René Fedou, Les hommes de loi lyonnais à la fin du moyen âge (Paris, 1964); and Bernard Guenée, Tribunaux et gens de justice dans le Bailliage de Senlis à la fin du moyen âge (Paris, 1963). For Italy, see Lauro Martines, Lawyers and Statecraft in Renaissance Florence (Princeton, 1969); and William S. Bouwsma, "Lawyers and Early Modern Culture," American Historical Review 78 (April 1973):303-27. A glimpse at English litigation in the late Middle Ages is provided by M. Hastings, The Court of Common Pleas in Fifteenth-Century England (Ithaca, 1947), pp. 8-9, 27; and Charles W. Ives, "The Common Lawyers in Pre-Reformation England," Transactions of the Royal Historical Society 18 (1968):145-73. See also Richard Helmholz, Marriage Litigation in Fifteenth Century England (Cambridge, 1974).

8. A recent study elaborating the influence of the frontier upon medieval Spanish society is Angus Mackay, Spain in the Middle Ages (London, 1976).

9. See Vilhelm Aubert, "Law as a Way of Resolving Conflicts: The Case of a Small Industrialized Society," in Laura Nader, ed., Law in Culture and Society (Chicago, 1969), pp. 282-303; and Juan José Toharia, Cambio social y vida jurídica en Espana (Madrid,1974). Colin Kaiser, "The Deflation in the Volume of Litigation at Paris in the Eighteenth Century and the Waning of the Old Judicial Order," European Studies Review 10 (July 1980):309-36, suggests that a similar development occurred in France.

10. Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York, 1977), p. 8.

11. See Francisco Tomás y Valiente, El derecho penal de Ia monarquía absoluta (Madrid, 1969); and Michael R. Weisser, "Crime and Subsistence: The Peasants of the Tierra of Toledo, 1550-1700," Ph.D. dissertation, Northwestern University, 1972.