Civil CodesMeaning

Evolution (Iberian America)

Last updated 31 Oct 11

Latin American Law

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 RoddenWinslow Taylor

US codes?

David Dudley Field

Karl Lewellyn& Soia MetchikoffUCC, which is essentially pre-

decodified for the convenience of those it covers, seems almost prescient in its form.

Jim Rodden

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 “What else, then, is all history,

but the praise of Rome?”

Petrarch

“a single stroke of a legislator’s pen renders useless entire libraries of academic literature.”

von Kirchmann

ius dicere / ars boni et aequi [law says … art of good and equitable]

vs.

iussum ac punitum

[command or punishment]

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 JarabaSpanish Economist (1716-1790)

William BlackstoneCommentaries on Law of England

Relationship of judge and legislature

(open vs closed system)

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?

Bavaria (1756)

Spain (1889)

Portugal (1967)

Italy (1942)

Portugal(1867)

Austria (1787)

Prussia (1792)

Germany (1900)

France (1804)

the codification process went through three major phases: genesis, climax, and decline …

Jim Rodden

European Codification

EU(????)

1700 19001800 2000

Origins of Latin American civil codes …

Which came first Iberian codes or American codes?

Year enacted Country Drafter Source of law

1827-1829 Oaxaca, Mexico French code, Castilian law

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 Adopted the Bolivian code completely

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 Austrian Code, French Code,Siete Partidas

French “code civil”(1804)

Spanish Civil Code

(1889)

Haiti(1825)

Chile(1852)

Brazil draft(1856)

Argentina(1869)

Bolivia(1831)

Portuguese Civil Code

(1867)

Oaxaca(1827)

Louisiana(1804)

What was law of newly-independent countries before codification?

What happened after LatAm codification?

French “code civil”(1804)

Spanish Civil Code

(1889)

Haiti(1825)

Chile(1852)

Brazil draft(1856)

Argentina(1869)

Bolivia(1831)

Portuguese Civil Code

(1867)

Dalmacio Velez Sarsfield (1800-1875)

Augusto Teixeira de Freitas (1816-1883)

“Consolidation of Civil Laws”

Andres Bello (1791-1865)

Oaxaca(1827)

Louisiana(1804)

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

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

“a new codification approach had emerged….that of producing codes from national law.”

Dalmacio Velez Sarsfield (1800-1875)

What is decodification?

Decodification …

Constitutionallaw

Speciallegislation

Judge-made law

Administrativeregulations

Code

How are LatAm countries resisting?Jim Rodden

Supra-nationallaw

And now some penal law …

Francisco de GoyaLos Caprichos

Evolution of the modern penal code.

Chronology :

• 1782: Manuel de Lardizával of Mexico publishes his Discourse on Penalties.

• 1786: Mello Freire of Portugal publishes a complete penal code, but it is never enacted.

• 1787: Manuel de Lardizával of Mexico drafts a penal code.

• 1830: Brazil’s Penal Code is effective, inspired largely by Mello Freire’s work.

• 1848: The Spanish Penal Code is published, inspired largely by Brazil’s Penal Code.

• Later: Latin American countries adopt the Spanish Penal Code.

Servant murders masterWife murders husbandHusband murders wifeChild murders parentParent murders childMurder 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 cutting-off of a part of at least equal value.

End

A quick review – US writ of mandamus

HypotheticalBen 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