Latin American Law
Civil Codes
Meaning
Evolution (Iberian America)
Last updated 31 Oct 11
Hasta que por fin se hace
necesario refundir esta
masa confusa de elementos
diversos, incoherentes y
contradictorios, dandoles
consistencia y armonia, y
poniendolos en relacion con
las formas vivientes del
orden social.
Andres Bello
(1791-1865)
Compilation vs. code?
Jim Rodden
Winslow Taylor
US codes?
David Dudley Field
UCC, which is essentially predecodified for the convenience
of those it covers, seems almost
prescient in its form.
Jim Rodden
Karl Lewellyn
& Soia Metchikoff
Is the US Code a code?
What is Title 42, Section 1983?
Winslow Taylor
Civil code –
science, history, religion or politics?
What is content of
civil code?
What is role of –
• Lawyer
• Scholar
• Judge
• Legislator
“a single stroke of a legislator’s pen
else,
then,libraries
is all history,
renders“What
useless
entire
of
but
the
praise
of
Rome?”
academic literature.”
Petrarch
von Kirchmann
ius dicere / ars boni et aequi
[law says … art of good and equitable]
vs.
iussum ac punitum
[command or punishment]
Relationship of
judge and legislature
(open vs closed system)
William Blackstone
Commentaries on Law of England
What is the point of compiling
laws and putting them in
order, if the evil inevitably
comes to us through the
common law, a bottomless
pit of suits, opinions, and
confusion? There lies the
root of this cancer.
Pablo de Mora y Jaraba
Spanish Economist (1716-1790)
Bravo Lira takes great pains to drive this point home, repeating
his conclusion at least five times in two pages:
1.
...[codes] departed from the common law cultivated by
scholars and academics.
2.
...legal scholarship lost [its] influence [with codification]. …
“A single stroke of the legislator’s pen renders useless
entire libraries of academic literature.”
3.
In contrast, common law, as scholarly law, drew its
legitimacy from the authority of the academic
commentators.
4.
What validated national [codified] law was political power,
not scholarly authority.
5.
...Roman law and common law were both scholarly law.
What is “common law” here?
European Codification
Bavaria
(1756)
Prussia
(1792)
1700
Portugal
(1867)
Germany
(1900)
1800
Austria
(1787)
France
(1804)
Portugal
(1967)
1900
Spain
(1889)
2000
Italy
(1942)
the codification process went through three major phases:
genesis, climax, and decline …
Jim Rodden
EU
(????)
Origins of Latin American
civil codes …
Which came first Iberian codes or American codes?
Chronology of Lat Am codes
Jim Rodden
Winslow Taylor
Year enacted
Country
Drafter
Source of law
1827-1829
Oaxaca, Mexico
1830
Bolivia
4 legal scholars
who sat on the
Supreme Court
French code,
Castilian law
1834-1839
Peru
Manuel Lorenzo
Vidauerre
Castilian law
1836
Spain
Eugenio Tapia
1841
Costa Rica
1847-1949
Uruguay
Eduardo Acevedo
Castilian law,
Gorosabel,
practical treatises
1851
Spain
Florencio Garcia
Goyena
French Code
1853
Venezuela
Julian Viso
Castilian law,
French code,
commentators,
Peru’s code
1853
Colombia
Justo Arosemena
1855
Chile
Andres Bello
French code,
Castilian law
Adopted the
Bolivian code
completely
Austrian Code,
French Code,
Siete Partidas
Louisiana
(1804)
Oaxaca
(1827)
French “code civil”
(1804)
Haiti
(1825)
Portuguese
Civil Code
(1867)
Spanish
Civil Code
(1889)
What was law of
newly-independent
countries before
codification?
What happened
after
LatAm codification?
Bolivia
(1831)
Chile
(1852)
Argentina
(1869)
Brazil draft
(1856)
Louisiana
(1804)
Oaxaca
(1827)
French “code civil”
(1804)
Haiti
(1825)
Portuguese
Civil Code
(1867)
Spanish
Civil Code
(1889)
Bolivia
(1831)
Brazil draft
(1856)
Augusto Teixeira de Freitas
(1816-1883)
“Consolidation of Civil Laws”
Chile
(1852)
Andres Bello
(1791-1865)
Argentina
(1869)
Dalmacio Velez Sarsfield
(1800-1875)
Bello took Spanish law (Siete Partidas and
Newest Compilation) and French law
(Napoleonic Code) and adapted them to
Chile – eliminating, for example,
mayorazgo. No wonder it took so long.
Julia Di Vito
***
… private law for Latin America created an
identity, while for the United States it was
merely a necessity
Francisco Morales
Dalmacio Velez Sarsfield
(1800-1875)
“a new codification approach had emerged….
that of producing codes from national law.”
Argentina Civil Code (1869)
• 30% Brazil draft
• 17% Austria profs
• 7% Spanish comment
• 4% Chile CC
• 4% French CC
• 3% French comment
• 2% German comment
• 1% Louisiana CC
• 1% Belgian comment
• 1% Uruguay draft
• 30% miscellaneous
What is decodification?
Decodification …
Constitutional
law
Judge-made
law
Supra-national
Code
law
Special
legislation
Administrative
regulations
How are LatAm countries resisting?
Jim Rodden
And now some penal law …
Francisco de Goya
Los Caprichos
Evolution of the modern penal code.
Chronology :
• 1782:
• 1786:
• 1787:
• 1830:
• 1848:
• Later:
Manuel de Lardizával of Mexico
publishes his Discourse on Penalties.
Mello Freire of Portugal publishes a
complete penal code, but it is never enacted.
Manuel de Lardizával of Mexico drafts a
penal code.
Brazil’s Penal Code is effective, inspired
largely by Mello Freire’s work.
The Spanish Penal Code is published,
inspired largely by Brazil’s Penal Code.
Latin American countries adopt the
Spanish Penal Code.
Servant murders master
Wife murders husband
Husband murders wife
Child murders parent
Parent murders child
Murder by duel
Hanging
Murder by poison
Death by poison
Rape
Castration
Sodomy, man
Castration
Sodomy, woman
Cut through nasal cartilage at least
½ in. dia.
Cutting out tongue, nose, lip, ear
Retaliation in kind, or if criminal is
missing said part, then the cuttingoff of a part of at least equal value.
End
A quick review –
US writ of mandamus
Hypothetical
Ben Austrin-Willis
Ed Felien
George Bush
Argentina Constitution Art 43.
Any person shall file a prompt and
summary proceeding regarding
constitutional guarantees,
provided there is no other legal
remedy, against any act or
omission of the public
authorities or of private parties
which currently or imminently
may damage, limit, modify or
threaten rights and guarantees
recognized by this Constitution,
treaties or laws, with open
arbitrariness or illegality. In
such case, the judge may
declare that the act or omission
is based on an unconstitutional
rule. …
§ 1983. Civil action for
deprivation of rights
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of
Columbia, subjects, or causes to
be subjected, any citizen of the
United States or other person
within the jurisdiction thereof to
the deprivation of any rights,
privileges, or immunities secured
by the Constitution and laws, shall
be liable to the party injured in an
action at law, suit in equity, or
other proper proceeding for
redress,
Writ of mandamus …
(US law)
Why was Bolivia’s code so long-lived?
Bolivia’s early years of independence, including
the period when its civil code was adopted, are
generally regarded as the country’s golden
age. Moreover, Bolivia’s civil code was
drafted by legal scholars who were then put on
the Supreme Court.
Stephanie Richter