Assistant Professor of Law, South Texas College of Law; Samuel I. Golieb Fellow in Legal History, New York University 1998-99; Visiting Professor of Law, Universidad de Los Andes, Bogotá, Colombia 1995-98. B.A., Boston University; J.D., Cornell University; Dipl. (Spanish), Ph.D. (Law), Cambridge University. I thank Professors Lauren Benton, Richard Graving, Saúl Litvinoff, Jonathan Miller, Susan Scafidi, Victor Uribe, Alain Wijffels, and my colleagues at South Texas for their helpful comments. My special thanks are due to Iván Jaksic who kindly read and commented on this article and supplied copies of several of his forthcoming works on Bello. Any errors are mine. The following librarians provided access to essential sources: Monica Ortale of South Texas College of Law, Jonathan Pratter of the University of Texas, Daniel Wade of the Yale Law School, and P. Michael Whipple of the University of Puerto Rico. Angeline Vachris and David Alvarez served marvelously as research assistants. Unless noted otherwise, translations to English are mine.
The Chilean Civil Code of 1855 drafted by Andrés Bello was perhaps the most influential codification in the development of Latin American private law after independence from Spain. The Code was not only used in Chile, but was later adopted as a whole in El Salvador, Ecuador, Venezuela, Nicaragua, Colombia, and Honduras. Bello's code was a main source for and influence on the civil codes of Uruguay, Mexico, Guatemala, Costa Rica, and Paraguay.1 Thus, the Chilean Civil Code was successful not only in Chile, but throughout Latin America.2
The success of this code in Chile was the result of Bello's ability to select and combine different sources, to clarify language, to organize intelligently the provisions drafted, and to press for the project over twenty years during a politically difficult period.3 The fruit of Bello's effort was a code that at once provided rules that reflected certain European enlightenment, commercial, and economic values, yet maintained and upheld traditional property expectations that were embedded in Latin American society and family structures. Bello found the former principles in European codes, particularly the French Civil Code of 1804 and its commentators. The latter were extracted from the Spanish colonial law which continued to govern Chile after independence from Spain.
It is well known that Bello relied heavily on the French Civil Code of 1804 (Code Napoléon or Code Civil) in his work, but the French Code's influence cannot be explained by merely asserting, as one early twentieth-century author put it, the "intellectual and moral ascendancy exercised by France upon certain countries, especially those of the Latin blood."4 Bello's use of the French Civil Code can be best understood by placing his borrowing of French law into the legal and historical context of Chile. With this method as its goal, this article sets out important factors in borrowing one country's law for application in another and examines Bello's code in this light. For reasons explained below, Bello's provisions dealing with property and inheritance were selected for study. After analyzing the use of borrowed law in constructing these provisions for Chile generally, this study presents three examples from property and inheritance law under the Chilean code; two examples demonstrate where French models were welcomed, another where the French model was spurned for a solution based on colonial Spanish law. By illustrating the types of decisions and compromises Bello made in the codification process, these examples help us understand how his solutions led to the Code's acceptance in Chile and its eventual adoption in other countries.
Bello's success was the result of his private work begun in 1833, of his introduction of legislation approving codification in 1840, his advocacy for the project, his editorial control of the newspaper El Araucano, and his cultivation of support from Chilean leaders.5 Before turning to the events and influences that shaped Bello's code, the political and legal background of Chile is helpful in understanding the context of the code. Similarly, some biographical information about Bello and the support he received from President Montt are important in understanding the success of the work.
The political history of Chile after independence is somewhat atypical of the instability experienced by most newly independent Latin American republics. While some Latin American countries debated and fought over the relative merits of conservatism, liberalism, federalism, and centralism for most of the nineteenth century, Chile-at least to the extent that it affected the operation of the government-resolved these issues quickly and consequently maintained a relatively stable autocratic regime for most of the century.
With the news of Napoleon's invasion of Spain, Chilean Creoles established a governing junta that, at first, continued to rule in the name of Spanish royal authority. The junta moved towards independence, but their separatist actions and small army were put down in 1814 by Spanish forces from the Viceroyalty of Peru. Chile gained independence permanently in 1818 under the leadership of José de San Martín. After winning independence from Spain, San Martín appointed O'Higgins as the Supreme Director of Chile. Too liberal for Chile's elite, O'Higgins was forced out of power in 1823, and for a short period thereafter the country experienced political unrest.6
The period from 1818 to 1830 was politically unstable compared to the period after 1830 when a dictatorial autocracy was established. Various liberal presidents attempted to consolidate power and draft constitutions, none of which lasted. Nonetheless, "[t]he 'anarchy' of the period has often been exaggerated by Chilean historians; it was very limited in comparison with the turmoil then occurring on the other side of the Andes."7 In 1829, a coalition of conservative forces from the southern city of Concepción ousted the liberal government of Francisco Antonio Pinto who stepped down from the presidency. A brief civil war ended in April 1830.8 Thereafter, Diego Portales held dictatorial political power as Minister of Interior and Exterior Affairs and Minister of War and Navy from 1829 until his death in 1837.9 Diego Page 294 Portales never served as President of Chile; he preferred to rule from behind the scenes.10 He viewed himself as a conservative restorer rather than a social innovator.11 His rule was marked by his protection of the landowning, merchant, and mining classes.12 In contrast to many newly independent Latin American countries, Chile experienced stability from this authoritarian regime.13 Legal reform was a part of Portales's plan for increased stability, economic growth, and progress. For example, in 1834, Manuel Rengifo, Portales's Finance Minister, sought to encourage growth through "laws which remove[d] obstructive impediments to industry and which protect[ed] property and its discernment."14
The momentum of Portales's leadership continued long after his death, as successive presidents led the country during the period from 1829 to 1861 (known as the "autocratic republic"). 15 Liberal ideas, however, continued to be expressed in public and political arenas, often by eloquent advocates such as José Miguel Infante.16
The entire span of Bello's work in Chile was situated within this period of authoritarian, central government. The enactment of Bello's civil code also came on the heels of the 1851 civil war.17 Although the project was well underway by this point, Bello's code would offer stability in the wake of the 1851 civil war by consolidating and centralizing governmental power in a time of political unrest-a result typical of codification.18 To understand the improvement that Bello's code offered, a discussion of the state of private law up to this time is necessary.
At the dawn of independence, colonial Latin America was politically bureaucratic and, in the propertied classes, socially litigious. From the thirteenth century in Spain, layer upon layer of Castilian private law built up as did, from the late fifteenth century, the more specialized rules relating solely to the Indies.19 Page 295 These sources were occasionally compiled into authoritative collections, such as the Recopilación de las Leyes de los Reinos de las Indias (1680), which set out much of the public law for Spanish colonies. Spanish private law was compiled in 1567 in the Recopilación de las Leyes de estos Reinos (called the Nueva Recopilación) and again in 1805 in the Novísima Recopilación de Leyes de España. These collections did little to organize or to clarify the rules of application for a particular dispute, and in practice, it appears that the most common source for...