Latin American Law Civil Codes Meaning Evolution Iberian

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 Lat. Am 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 Lat. Am 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