The Significance of Judge-Made Law in Mexico, 1870-1932
Chair:
Presenters:
Peter L. Reich, Professor of Law, Whittier Law School
Kif Augustine-Adams, Professor of Law and Associate Dean for Research and
Academic Affairs, J. Reuben Clark Law School, Brigham Young University
Timothy James, Assistant Professor of History, University of South Carolina,
Beaufort
Alejandra Núñez-Luna, Doctor of Juridical Science (S.J.D.) candidate, Harvard
Law School
William Suarez-Potts, Assistant Professor of History, Kenyon College
Session Abstract
This panel examines judicial decision-making in Mexico from the late nineteenth century
through the 1920s. In this period, Mexico underwent agricultural commercialization, incipient
industrialization, revolution, and the formation of a modern state. Law certainly was a
constituent if opaque element of the historical processes related to these developments. Yet
historians have barely posed questions about how the nation’s judges interpreted law or the
impact of their judgments on social and political relations, outside the field of criminal law,
despite the existence of extensive court systems – perhaps partly because of the nation’s civil law
tradition and episodes of violent conflict. The panel addresses these questions about the
historical significance of Mexican case law.
Timothy James’s paper considers the judicial institution of amparo, a form of injunctive relief
granted by federal courts, and its importance for the constitutional structure of government in the
late 19th century. Covering approximately the same period, Ale Núñez-Luna’s paper analyzes
records of court cases that dealt with the institution of private property over water resources, as it
mattered both to elite and less powerful groups and individuals. Kif Augustine-Adams’s paper
recounts litigation around an anti-miscegenation statute to probe gender and racial relations in
connection with the construction of the modern state. William Suarez-Potts’s paper discusses
apparent judicial defiance of an authoritarian presidency, and judge-made law in the context of
industrial relations. In general, these papers pay attention especially to legal practices and
judicial language, but by focusing on court cases, they suggest how adjudication has mattered
during much of Mexico’s modern history, notwithstanding the nation’s tradition of civil law and
patrimonial relations, or its experience of civil wars and substantial levels of corruption. For this
reason, the panel should be of interest both to those interested specifically in Latin American
legal history and the broader scholarly community.
Paper Abstracts
T.M. James, “The Question of Judicial Autonomy and Judicial Interpretation During the
Porfiriato, 1877-1907”
Mexico is not a country well known for its effective protection of constitutional rights and the
Porfiriato (1876-1911) in particular is considered a period when rights protections were
systematically ignored in practice. Yet Mexican legal scholars have long recognized a tension
between the institutionalization of a constitutional suit protecting individual constitutional rights
– known as amparo – and the simultaneous consolidation of the regime of Porfirio Díaz.
According to Stephen Zamora et al. in their impressive volume Mexican Law, “Ironically, it was
during [the Porfirian] period that the Supreme Court developed the basic doctrines surrounding
the use of amparo to protect constitutional rights.” Others, however, have suggested that, “the
Porfirian judiciary hardly provided legal interpretations, for it lacked the necessary degree of
independence.” This paper takes up this historical problem using new information from
executive branch archives and a database of 2,130 amparo cases (20 % of the universe of data for
select years) to answer the following questions. Was amparo jurisprudence an important source
of law? Were amparo cases that were decided against the interests of the federal executive or
powerful governors enforced? Did the executive try to intervene or otherwise influence the
judicial decisions of the Supreme Court? Did the executive control judicial appointments and to
what extent was the Supreme Court subservient to the executive branch in their legal
interpretations of constitutional rights?
Alejandra Núñez-Luna, “Judicial Decision-Making in Private Law and Administrative
Regulation of Water Resources in Mexico, 1870-1910”
According to the historiography of modern Mexico, 1888 marked the beginning of the federal
government takeover of water resources, to the detriment of municipalities, and landed estates.
The latter had formerly managed them under the Civil Code which, despite its liberal project,
allowed for the survival of local colonial practices. This “federalization” by Congressional
legislation helped strengthen the state’s administrative powers, and began the pathway towards
the favoring of national property rights over water resources that culminated in Article 27 of the
Constitution of 1917. To date, however, the role of the judiciary in rulemaking over water
resources from the passage of the civil codes throughout this federalization process has been
overlooked.
By analyzing, for the first time, state and federal water law court cases published in the Mexican
Bar Association’s periodical El Foro, as well constitutional amparo decisions of the Supreme
Court from the Semanario Judicial de la Federación, this paper will discuss the role of state and
federal courts in interpreting “private property” rights over water resources, the regulatory role of
the executive power, and conflicts of jurisdiction between the federal government and the states.
Selected cases cover the period from the passage of the civil codes circa 1870s through the
establishment of the first national water policy in 1910, with special attention paid to how courts
helped redefine or limit property rights and states’ powers before and after 1888, when Congress
passed a statute on federal jurisdiction over watercourses, and after 1902, with the passage of the
first legislation on the public domain, all within the classical liberal tradition. Because
individuals actively used the judicial system to solve water disputes, courts had more than a
minimal role in helping define the process of federalization of waters that enabled the country’s
industrialization, which remains to be analyzed.
Kif Augustine-Adams, “Marriage and Mestizaje, Chinese and Mexican: Constitutional
Interpretation and Resistance in Sonora, 1924-1932”
In December 1923, the state congress in Sonora, Mexico, enacted Law 31, a pointed antimiscegenation law that prohibited marriage between Mexican women and Chinese men.
Although prejudice against Chinese in Sonora was long-standing, Law 31 marked a decided
uptick in the use of law and legislation to discriminate against them. Mexican Chinese couples
responded in kind: they challenged Law 31 in federal court, seeking amparo – judicial relief –
against its enforcement. The petitions and public reaction to them tell a complex story about
constitutional interpretation, judicial process, and federalism, on the one hand, and race, gender
and marriage, on the other.
At the lower federal court level, the nearly complete success of Chinese amparo petitions against
Law 31 in 1924 and 1925 represented a short span of time when a handful of federal judges
made real in the lives of a despised minority the promises of equality set forth in Mexico’s 1917
Constitution. The federal judges, and Arsenio Espinosa in particular, did so by strictly applying
the law and, thus, asserting the supremacy of the federal Constitution over the ordinary
legislation of the state of Sonora.
In contrast, the Second Chamber of the Mexican Supreme Court decided the Law 31 appeals it
heard on other grounds: the proper allocation of legal authority. In the first case, the court
considered what government entity could impose fines and punishments. In the second case, the
court evaluated whether and how state authorities could regulate marriage. Through its
decisions, the Second Chamber ultimately legitimated Sonora’s defiance of federal law and its
state-sanctioned discrimination against Chinese. Marriage equality failed and with it some of the
promise of the 1917 Constitution.
William Suarez-Potts, “Judge-Made Law, Labor and the State in Mexico, 1927-1930”
In 1927 the Mexican federal judiciary directly challenged the authority of the nation’s executive
power when a lower court judge ruled against an order of a cabinet-level secretary, and the
nation’s supreme court affirmed the ruling in a lengthy opinion. The judiciary’s decisions are
remarkable, in view of the quasi-authoritarian and violent politics during the presidency of
General Calles. (The year 1927 counted one military uprising and the outbreak of an agrarian
insurrection linked to disputes between the Catholic Church and the state.) President Calles’
response to the judiciary’s legal position was to issue a decree that was arguably
unconstitutional. Although the Supreme Court in effect ratified the decree in 1929, in an opinion
that at first impression appears inconsistent with its 1927 judgment, in 1930 the same court in an
unrelated case queried the constitutionality and legality of the presidential decree.
This paper reviews in their historical context these three Supreme Court cases that addressed
major social and political issues related to industrial disputes in Mexico. The paper explains the
apparently paradoxical, conflicting judicial decisions as the product of both an evolving judgemade law and political and social conditions, and more broadly suggests the nature and limits of
adjudication and case law in Mexico in the first decade and a half after the country’s
revolutionary civil war.