The Code Napoleon: buried but ruling in Latin America.

AuthorMirow, M.C.

"The Liberator President is highly aware of the wisdom with which the Code Napoleon was drafted." (1)

When lawyers from different countries meet, they are likely to exchange almost phatic pleasantries about legal practice and their legal systems. Latin American lawyers visiting the United States invariably respond to inquiries about these matters with the observation that their system is based on the Napoleonic Code. This statement, of course, does not mean the same thing to a U.S. lawyer as it does to any European lawyer. It is an assertion of historically and culturally rooted equality or even superiority to the Anglo-American common law system. This short-hand reference to the French Civil Code of 1804 is a gross oversimplification, but one that continues today. Indeed, noted comparative lawyers and legal historians are partly to blame for such statements. In the United States, because our introductory law school literature tends to perpetuate it, (2) lawyers are apt to believe this characterization of Latin American law. Echoing the great European comparativists, general Latin American literature also continues this description. (3) It is a convenient short-hand comment, but unsoundly inaccurate. To say that Latin American law is centered on the Code Napoleon is similar to saying that United States law is based on Blackstone's Commentaries and that Belgian law is based on Justinian's Digest. There is some truth and some falsity to these statements and this study proposes to explore the historical and present-day significance of the Code in Latin America, particularly the Spanish-speaking countries.

In 1909, Frederic William Maitland, one of England's great historians, cogently observed that, within the common law system, "[t]he forms of action we have buried, but they still rule us from their graves." (4) The forms of action, procedurally embodied in the common law writs commencing legal proceedings, provided the taxonomy of Anglo-American common law for over 700 years. Maitland's annunciation of their death is known to virtually every student of the history of Anglo-American law; it is perhaps as familiar as "honeste vivere, alterum non laedere, suum cuique tribuere" is to those in the civil law tradition. Writing at the beginning of the twentieth century, Maitland rhetorically lamented the dismantling of the procedural writ system that defined substantive areas of law and maintained a clear distinction between law and equity in the common law system. This change occurred in England through piecemeal legislation in the nineteenth century and especially through the sweeping procedural reforms of the Common Law Procedure Act of 1852 and the Judicature Act of 1873. (5) Despite the removal of procedural difference and of particular labels for private law remedies, the substantive distinctions left in the common law by the forms of action were lasting and continue today. Thus, Maitland was quite correct to note the paradox: the forms of action had been buried, but they continued and continue to rule the common law.

Maitland's observation, published at the beginning of the twentieth century, noted fundamental changes in the common law that came about in the nineteenth century. Today, at the beginning of the twenty-first century, looking back at the changes of the twentieth century, one may make a similar observation concerning the place of the Code in Latin America. Thus, today this author paraphrases for Latin America: "The Code Napoleon we have buried, but it still rules us from its grave."

Just as the buried forms of action continue to structure and define Anglo-American law, so too does the buried Code continue to rule Latin-American law. This study will first briefly situate the Code in the development of Latin American private law. After establishing the primary importance of the Code in the development of nineteenth- and early twentieth-century Latin American law, this study will then explore the present-day aspects both burying the Code and permitting it to reign in Latin America's legal development and culture. Even in the formative years of national Latin American law, the Code was not a monolithic concept or text removed from interpretation, and it carried assumptions about legal structure and method with it from the beginning. The paradox of its burial and rule are not purely a modern phenomenon. Nonetheless, the sharp clarity of this dual place of the Code in recent times is notable, and this study explores its manifestation.

  1. THE CODE NAPOLEON IN INDEPENDENCE AND EARLY REPUBLIC LATIN AMERICA

    The fundamental influence of the Code Napoleon on Latin America's legal development is unquestionable and clearly evident from contemporary sources. Indeed, Latin American scholars have produced a free body of work on the codification of private law. These works underscore the importance of the Code in the process of creating new national law for the new republics. (6)

    After independence, the new republics of Latin America sought to create new law. The first wave of constructing new law occurred at the constitutional level, with countries immediately drafting constitutions in order to replace colonial rule with national structures. Drafters of these documents were often informed by the political writings of European Enlightenment philosophers, the liberal Spanish Constitution of Cadiz (1812), and the Constitution of the United States of America. (7) Legal reform in the creation of new republics was not limited to the constitutional level; private law too needed to be recast to reflect the needs of these new countries.

    Rewriting and reforming private law was important for several reasons. First, some aspects of private law were clearly inconsistent with the new forms of republican government. Nobility, slavery, special jurisdictions, and legal disabilities of illegitimates, as well as the private law institutions linked to these areas of law, had to be removed. (8) Second, a unique body of private law was an important step in creating national identity and consolidating state power in new governments. (9) Indeed, many new constitutions made direct references to legal reform, specifically codification. Third, the legacy of colonial private law was a complicated and unwieldy mass of repetitive and conflicting sources. This conflict led to desires for simple codes of applicable law. (10) Fourth, commerce, property, and the legal system demanded sources and rules that would ease their operations and establish their place in the new republics. (11)

    Despite these forces pushing for the reform of private law in the new republics, true, effective, and lasting change was often delayed for decades. Most countries in Latin America continued to refer to the private law as it existed on the eve of independence, as modified by piecemeal rules enacted or decreed intermittently after independence. This delay was mostly the result of the political instability Latin American countries faced after independence. Civil wars and civil strife reflected deep political differences in segments of the population of many countries. Liberal and conservative notions of politics and society faced off against each other, complicated by considerations of what form--federal or centralized--governments should take.

    In addition to the lack of politically stable governments, the treasuries of the new countries were impoverished and resources for legal reform were scarce. Government or self-appointed individuals and committees undertaking the task of legal reform often moved forward without assurances of financial benefit.

    The legal talent necessary for reform was also scarce. Able judges, lawyers, and legislators were occupied with the immediate tasks of getting new governments to run smoothly, rather than retreating to the drafting room to consider various possible code sections for new national codes. Even finding the right books to begin work on new private law could present insurmountable difficulties. Early republic legal education was in the European ius commune tradition, and with academic inertia and familiarity with current materials, there was little pressure from professors to reform private law. As the cradle of government, law schools were subject to political forces and governmental supervision. For example, the introduction of the works of Jeremy Bentham into the classroom met with governmental prohibition more than once. (12)

    Legal reform and codification could also be hindered by those holding vested interests in the present system. Thus, holders of large properties feared that new legislation might undo their carefully constructed arrangements, and the Church feared the secularizing influences of legal reform on its jurisdiction and property.

    In this environment, early attempts at codification for the most part failed to make lasting and important changes in the sources of private law. Some countries did draft and pass civil codes in the 1820s and 1830s. For example, the Haitian Civil Code of 1825 is a nearly exact copy of the Code Napoleon. (13) Similarly, the Civil Code of Oaxaca (Mexico) of 1827-1829 appears to have been taken almost entirely from the Code. (14) Nonetheless, it was not until the mid-nineteenth century that conditions had improved so that codification of private law could be attained with greater success. When conditions were better, individuals and committees took up the call to provide codes of private law for the new republics.

    Successful codifications of private law were often exercises in comparative legislation. At the core of these exercises were the Code Napoleon and the European commentary sources that quickly grew around the main text. This however does not mean that Latin American countries merely translated and borrowed the Code, article by article. Rather, the Code Napoleon provided the structure and measure of the enterprise. The substantive rules adopted often varied from the...

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