Civil Codes Meaning Evolution (Iberian America)

1. Latin American Law Civil CodesMeaning Evolution (Iberian America) Last updated 31 Oct 11

2. 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

3. David Dudley Field US codes? UCC, which is essentially pre-decodified for the convenience of those it covers, seems almost prescient in its form. Jim Rodden Karl Lewellyn& Soia Metchikoff

4. Is the US Code a code? What is Title 42, Section 1983? Winslow Taylor

5. What is content of civil code? • What is role of – • Lawyer • Scholar • Judge • Legislator Civil code – science, history, religion or politics? “a single stroke of a legislator’s pen renders useless entire libraries of academic literature.” von Kirchmann “What else, then, is all history, but the praise of Rome?” Petrarch

6. ius dicere / ars boni et aequi [law says … art of good and equitable]vs.iussum ac punitum[command or punishment]

7. William Blackstone Commentaries on Law of England Relationship of judge and legislature (open vs closed system) 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)

8. Bravo Lira takes great pains to drive this point home, repeating his conclusion at least five times in two pages: • ...[codes] departed from the common law cultivated by scholars and academics. • ...legal scholarship lost [its] influence [with codification]. … “A single stroke of the legislator’s pen renders useless entire libraries of academic literature.” • In contrast, common law, as scholarly law, drew its legitimacy from the authority of the academic commentators. • What validated national [codified] law was political power, not scholarly authority. • ...Roman law and common law were both scholarly law. What is “common law” here?

9. Bavaria (1756) European Codification Prussia (1792) Portugal(1867) Germany (1900) Portugal (1967) 1700 1800 1900 2000 Austria (1787) Spain (1889) Italy (1942) EU(????) France (1804) the codification process went through three major phases: genesis, climax, and decline … Jim Rodden

10. Origins of Latin American civil codes … Which came first Iberian codes or American codes? Chronology of Lat Am codes Jim RoddenWinslow Taylor

12. Louisiana (1804) French “code civil” (1804) Oaxaca (1827) Haiti (1825) Portuguese Civil Code (1867) Spanish Civil Code (1889) Bolivia (1831) What was law of newly-independent countries before codification? What happened after LatAm codification? Brazil draft (1856) Chile (1852) Argentina (1869)

13. Louisiana (1804) French “code civil” (1804) Oaxaca (1827) 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) Argentina (1869) Andres Bello (1791-1865) Dalmacio Velez Sarsfield (1800-1875)

14. 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

15. 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 Dalmacio Velez Sarsfield (1800-1875) “a new codification approach had emerged…. that of producing codes from national law.”

16. What is decodification?

17. Decodification … Constitutional law Code Judge-made law Supra-nationallaw Special legislation Administrative regulations How are LatAm countries resisting? Jim Rodden

18. And now some penal law …

19. Francisco de Goya Los Caprichos

20. 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.

22. End

23. A quick review – US writ of mandamus Hypothetical Ben Austrin-Willis

24. George Bush Ed Felien

25. 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,

26. Writ of mandamus …(US law)

27. 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