This presentation is prepared within the context of the "Joint Venture. A Transnational Study and Training Program for U.S. and Mexican Business Lawyers" and its main purpose is to help as a written material to the same. Therefore, this paper does not aim to become an original piece but only to summarize what others have already written. Among those authors from which we have received a more strong influence we must mention: Rene David, l John Henry Merryman, and Rudolph Schlesinger
After all, as Adso of Melk stated in The Name of The Rose
"Now, I realized that not infrequently books speak of books: it is as if they spoke among themselves".
However, we must not forget what Brother William of -Baskerville replied "Books are not made to be believed, but to be subjected to inquiry. When we consider a book, we mustn't ask our selves what it says but what it means…In that sense this presentation also aims to be a starting point to begin with the study of the Civil Law Tradition. As we understand it, Comparative Law is not one specific ~ranch of the Legal Science but a method to approach the legal phenomenon.
Comparative Law intents to explain how the legal phenomenon is understood in different times and places as well as to suggest and provide, when possible, with adequate tools to help and assist in the application of the law instead of the differences from place to place.
Legal Systems around the world are classified in Families,6 or Traditions,7 but both names make reference to the same thing, that is, the aim of gathering the legal systems of every country according to certain criteria which are analogous ar at least similar among them.
Some of the criteria to gather the legal systems in Families or Traditions are the following:
a.- Historical background,
6 DAVID, Rene, Los Grandes Slstemas Jurfdicos Contemporaneos (Derecho Comparado), Loc. Cit. P.p. 10 to 14.
7 MERRYMAN, John Henry; CLARK, David S. Comparative Law: Western European and Latin American Legal Systems, Loc. cit. P.p. 2 to 6.
4 b.- Conception about the role of law toward society and about
the role of lawyers in that society.
c.- Concepts and terminology.
d.- Methods for legal research.
e.- Sources of Law and its hierarchical authority. f.- Practices and techniques used by lawyers. g.- Legal Education.
Among the most important Legal Traditions of our world today
I we can mention the Common Law, the Socialist Law and the Civil Law.
Mexico is considered as member of the Civil Law Tradition. Therefore we deem necessary to explain the main features, the master
j 5
lines, of this Tradition in order to understand what the Law is in Mexico and what is the role of Lawyer in our country.
a.- General Overview.
History is a permanent process and in such a process one event
is necessarily linked to others which have already occurred and to many others which will occur .
Therefore, when we need to cut a historical segment we are always doing it with some amount of arbitrariness. That is why we must explain why we are establishing the limits of that segment in one or other point.
Speaking about the Civil Law Tradition we set its beginning
around the V Century A.D. during the period of the Roman Emperor
Justinian, we locate the next station of its historic evolution around the XI and XII Centuries A.D. with the development of the Middle Ages
7 Universities and with St. Thomas of Aquinas and the. Scholastic School of Philosophy.
From the development of the University of Bologna up to the XVI Century A.D. we found the Schools of the Glossators and the Commentators.
Thenafter, from the XVI Century and ahead we can mention the raising of rationalism, humanism and the appearance of the Modern State and with that the new conceptions and developments about Public Law.
In the XIX Century A.D. occurred the splendors of Codification and in the XX Century A.D. we find a new feature, the process of de- codification.
With that we will close the historical segment about the evolution of the civil Law tradition, because with the proximity in time we
8 lost perspective.
b.- The Work of Justinian.
We trace the origins of the Civil Law Tradition during the time East Roman Emperor Justinian.8
Although Justinian was not a jurist himself he ordered to compile the rules of the most important instruments of the Roman Law in effect until his time.
The result was what is known as Justinian's Corpus Juris Civilis which is divided in four parts:
a.- The lnstitutiones, four books written in textbook style,
,
but given the force of Law.
8 Flavius Justinianus (Petrus Sabbatius). Born 483 A.D. in Taresium. Died 565 A.D. in Constantinople.
9
b.- The Digesta or pandecta , the longest and most important part of the whole work, arranged in 50 books and constituting a compilation of excerpts (edited and sometimes revised by Justinian's commission) from the opinions and writings of the 38 most famous Roman Jurists of prior centuries, especially Ulpianus, Paulus, Papinianus, Gaius and Modestinus.
c.- The Codex, a compilation of prior imperial decrees, again edited and in part revised by Justinian ' s commission under the chairmanship of Tribonianus.
d.- The Novellae, a collection of decrees and rescripts issued by Justinian after 534, A.D., i.e. after the three original parts of the work were completed.9
Later on, with the fall of the Roman Empire the lower middle ages meant chaos and disorder due to the invasions of the Barbarian invaders from northern and central Europe.
During that time the monasteries and abies preserved knowledge for mankind and it came to existence some kind of barbarized
9 Wenger, Die auellen de romischen Recht 576-679 (1953). Cited by SCHLESINGER, Rudolph B.; BAADE, Hans W .; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materlals, Loc. Cit. P. 248 Footnote (e).
10 Roman Law such as the Lex Romana Visigothorum and the Lex Romana Burgundionum.} 0
c.- The development of the European universities and the restoration of the idea of Law.
Rene David has stated that "the Civil Law tradition has been always based over a community of culture."}}
In this order of ideas the first event we have to mention is the developing of the Middle Ages European universities,}2 beginning with
10 H. COING, "The Roman Law as Ius Commune on the Continent", 89, Law Quarterly Review, 505, 1973. Cited by SCHLESINGER, Rudolph B.; BAADE, Hans W.; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, Loc. Cit. P. 256 Footnote b.
11 DAVID, Rene, Los Grandes Slstemas Jurldlcos Contemporaneos (Derecho Comparado), Loc. Cit. P. 28.
' 12 About the development of the Middle Ages Universities and the study of Law it is important to make reference to the book of Rolando T AMA YO SALMORAL on that specific matter . TAMAYO SALMORAL, Rolando, La unlversldad epopeya medieval (notas para un estudio sobre el surgimlento de la unlversldad en el alto medlevo), Mexico, Universidad Nacional Aut6noma de Mexico-Uni6n de Universidades de America Latina. (1987. (Instituto de Investigaciones Jurfdicas. serie C: Estudios Hist6ricos, num. 22)
1 1 Bologna (1100 A.D.), Padua (1222), Perugia (1308) and Pisa (1343).13
To this event we can also associate the starting of what is known as the school of Glossators which developed in Bologna, and "was an integral part of the tremendous revival of intellectual life that began
Iaround the end of the eleventh century and characterized the entire late middle ages. This cultural revival is marked by the rediscovery of Aristotle and the development of scholastic philosophy …"14
.-Now, along with the ph~nomena of the developing of the Middle Ages universities, we must mention the figure of St. Thomas
I Aquinas who is the most outstanding representative of the School of
I Scholastic Philosophy.
By means of St. Thomas Aquinas the work of Aristotle is ,
13 Cfr. CAPPELETI, Mauro; MERRYMAN, John Henry; PERILLO, Joseph M.; The Italian Legal System: an Introductiort;:;tanford University Press, cited by MERRYMAN, John Henry; CLARK, David S. Comparative law: Western European and latln American legal Systems, Loc. Cit.P. 89.
14 Ibidem.
12 .enewed and also it was demonstrated that pre-Christian philosophy, )ased upon reason is adapted in good measure to divine Law, bringing as a ~onsequence an "exculpation" of Roman Law .15
The influence of the Scholastic school of philosophy is notorious if we consider that among the most important literary forms employed the School of the Glossators were the following:
(1) The dissentiones, the opposing and irreconcilable opinions that had been expressed by various Glossators.
(2) The queaestiones, or disputes concerning controversial situation-types about which the argument on all sides of the questions were expounded and resolved pursuant to the author's solutio.
(3) The casus, glosses on hypothetical and, later, actual cases to which a rule of law was applied (a form used only infrequently).
(4) The brocarda or aphorismata, maxims or definitions of I general applicability, expressed succinctly for easy memorization.
15 Cfr. DAVID, Rene, Los Grandes Sistemas Jurfdlcos Contemporaneos (Derecho Comparado), Loc. Cit. P. 30.
13
(5) The summae, which were treaties (like the summae of the theologians) on particular areas or institutions of the law .16
After the Glossators there is another school which developed its work in the scholastic environment of the universities, that is the school of the Post-Glossators or Commentators.
This school "was born and developed in complete harmony with the contemporary dialectical methods of inquiry of scholastic philosophy. Legal study no longer rested on a literal reading and exegesis, as it had during the time of the Glossators. It was now based upon a search, through a process of synthesis and abstraction, for the principles running through the law and the rationale of legal rules. Thus there was a change from the literal interpretation of the law to the building of an analytic structure (or, as it is still called in Italy, a "dogmatic ,
16 .CAPPELETI, Mauro; MERRYMAN, John Henry; PERILLO, Joseph M.; The Italian Legal System: an IntroductlQrt3tanford University Press, cited by MERRYMAN, John Henry; CLARK, David S. Comparative Law: Western European and Latin American Legal Systems, Loc. Cit.P. 92.
14 construction") of the law within the legal system. With this method, the Commentators created a good part of the dogmatic or analytic structure that still differentiates the style of modern continental legal systems from their Roman antecedent. "17
Thus, in the continental Europe during the Middle Ages the Law was understood not as a body of rules to be in effect to resolve any particular controversy, but as an area of knowledge in the context of moral sciences, much more in connection philosophy, theology or religion.18
The lawyers, were much more the juristae type, a university- trained lawyer, a uniform professional group having the same scientific background.19 This common scientific background is what is known as the Ius Commune.
.17 Ibidem. P. 93
18 DAVID, Rene, Los Grandes Sistemas Jurldicos Contemporaneos (Derecho Comparado), Loc. Cit. P. 28.
19 H. COING, "The Roman Law as Ius Commune on the Continent", 89, Law Quarterly Review, 505, 1973. Cited by SCHLESINGER, Rudolph B.; BAADE, Hans W.; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materials, Loc. Cit. P. 262.
15
What happened was that the Roman Law taught by universities every day became more distant from the original Roman Law and also became some kind of modern Roman Law applicable to the new realities, that is known as the usus modernus Pandectarum.20
The above mentioned features still remain as characteristics of the Civil Lawyers:
1.- They are university-trained.
2.- They are educated in a cultural environment.
3.- They have an scholastic attitude toward legal problems.
' 4.- According to their view of the world the law is a
20 Cfr. DAVID, Rene, Los Grandes Slstemas Jurfdlcos Contemporaneos (Derecho Comparado), Loc. Cit. p, 31 I
16 fundamental element for social peace and order.
d.- Rationalism and Humanism.
Between the XVI and XVIII centuries A.D. we can identify two ideological trends which reshaped the world of that time and our own contemporary world, we are speaking about the Humanism and Rationalism.
With the Renaissance it came a revalorization of the human dignity as entitled to certain rights due to their own human nature.
The humanism is also the philof.;('phical explanation of what we know as Human Rights a notion which 1cquired more relevance with development of the Modern State.
The other philosophical trend on our historical journey is the Rationalism which sustains that the world and the their phenomena can be
17 understood and explained by means of human rationale.
The attitude of the thinkers of the era of rationalism was oriented to the use of the deductive method and was characterized by a constant effort to systematize human knowledge.
The following ideas are of great assistance to determine the profound influence of rationalism in the development of the Civil Law Tradition:
"…the legal thinkers of the natural law period revolutionized the methods of systematization. Prior to the 17th century, the civil law had been far less systematic that is commonly believed. The spirit of classical Roman law was pragmatic and casuistic, and even the sophisticated compilers of the Corpus Juris excelled more in practical wisdom than in system-
–buitding~ The medieval sci1-oiars, especially the commentators improved the systematic treatment of certain subjects; but like the Roman jurists, they though primarily in terms of specific
.problems or topics rather than in terms of an overall system. It was not until the natural law era that scholars began to build coherent and comprehensive systems of private law. The method of system-building used during the 17th and 18th
18 centuries was deductive."21
e.- The emergence of the Modern State and the development Public Law.
The distinction between Private and Public Law features the first classification which the Civil Lawyer makes about the legal discipline, and it has been widely accepted among juristae, at least since the development of the Schools of the Glossators and the Commentators.22
However, legal studies until the Modern Age were mostly oriented to Private Law matters. Therefore, the emergence of the Modern State and the Age of Revolutions implied to the Civil Law world an open space for the development Public Law.
21 DEAK and RHEINSTEI, "The Development of French and German Law", 24 Georgia Law Journal 551 (1966) cited by SCHLESINGER, Rudolph B.; BAADE, Hans W.; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materials, Loc. Cit. P. 274.
22 MERRYMAN, John Henry; CLARK, David S. Comparative Law: Western European and Latin American Legal Systems, Loc. Cit. P. 801.
19 Public Law is that branch of the Legal discipline dealing with
the problems of the legal framework of the powers and fields of action of the State as well as with the limits of that powers before private individuals.
Now, although the very important differences which exist from country to country in the field of Public Law, the common scientific background of Civil Lawyers make them to approach that reality with similar criteria and methods.23
f.- The Period of Codification.
It frequently happens that the Civil Law tradit'on is identified
with the world of codes, although the codification is a relatively recent in
the history of the Civil Law tradition.
23 Cfr. DA VID, Rene, Los Grandes Sistemas Jurldicos Contemporaneos (Derecho Comparado), Loc. Cit. P. 67.
20
We agree that codification was only possible thanks to the foundations laid by the system building scholars in the sense that codification is itself a product of the Age of Reason.24
For that reason the codes were intended to be authoritative, systematic and comprehensive statements of the law in each of the areas of the same.25
The codes which are most frequently found in the Civil Law countries are the Civil Code, the Commercial Code, the Criminal Code, the Code of Civil Procedure and the Code of Criminal Procedure.26
O r~~ of the first intents of Codification is the Prussian
, 24 Cfr. SCHLESINGER, Rudolph B.; BAADE, Hans W .; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materials, Loc. Cit. P. 274. Footnote 19a.
25 Cfr. Ibidem. P. 291.
26 Cfr. MERRYMAN, John Henry, La tradlci6n jurfdlca romano-can6nlca, Mexico, 1a. reimpresi6n, Fondo de Cultura Econ6mica, 1979. P.34.
21 Allgemeines Landrecht of 1794,27 this code .was in effect under Frederick the Great and had about sixteen thousand articles. This intent did not transcended.28
Now, the code which really became a landmark for the development of the Civil Law tradition was the Napoleon Civil Code of 1804, "which provisions were considered as principles or maxims feconds en consequences to be developed and applied by judges and jurists."29
Rene David says that the tremendous influence of the Napoleon Civil Code can be attributed basically because it was the work of an illustrated sovere}gn and due to the tremendous influence of France throughout the world at that time.3 0
27 Cfr. DAVID, Rene, Los Grandes Sistemas Jurldicos Contemporaneos , (Derecho Comparado), Loc. Cit. P. 48
28 Cfr. MERRYMAN, John Henry, La tradici6n juridica romano-can6nica, Loc. Cit. P. 60.
29 Idem.
30 Cfr. DAVID, Rene, Los Grandes Sistemas Jurldicos Contemporaneos (Derecho Comparado), Loc. Cit. P. 48
22
In the case of Mexico we received the influence of the French Civil Code as it has been extensively documented by Professor Rodolfo Batiza.31
At this point, it must be said that if the Napoleon Civil Code is only one of the two most important trends during the period of codification. The other landmark is the German Civil Code {Burgerliches Gesetbuch -BGB-) of 1896, which came into effect on January 1, 1900.32
The German Civil Code of 1900 is the result of the work of School of the Pandectistics, the German scholars of the XIX century ,for whom their ideal "was to develop a legal system in which all particular rules were derived form and classified under certain basic conceptions."33
, 3' BA TIZA, Rodolfo, Los Orlgenes de la Codlficacl6n Civil y su Influencia en el Derecho Mexicano, 1 a. ed., Editorial Porrua, S.A. 1982.
32 Cfr. SCHLESINGER, Rudolph B.; BAADE, Hans W .; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materials, Loc. Cit. P. 533.
33 Cfr. K.W. RYAN, An introduction to the civil Law, cited by MERRYMAN, John Henry; CLARK, David S. Comparative Law: Western European and Latin American Legal Systems, Loc. Cit. P. 221.
23
Finally, we must add that if the studies on Roman Law made by the School of the Glossators and Commentators during the Middle Ages
was known as the usus modernus pandectarum, it has been said that the results of codification were some kind of usus modernissimus pandectarum.34
g.- The period of de-codification.
After World War I, it began a process in which some Statutes were developed out from the original codes. This process is known as de- codification.35
In our oppinion this process does not means a fundamental , change in the orientation of the Civil Law tradition, mainly because of the
34 Cfr. DAVID, Rene, Los Grandes Slstemas Jurrdlcos Contemporaneos (Derecho Comparado), Loc. Cit. P. 50
35 About this process we make reference to the article of Dr. Miguel ACOSTA ROMERO on
this matter. ACOSTA ROMERO, Miguel, "El fen6meno de la descodlflcacl6n en el derecho civil", Madrid, Revista de Derecho Privado, Diciembre 1988. Pp. 611-628.
24 important supplemental role which is played by the ~odes in constructing those Statutes developed out from the original codes.
h.- Collateral influences.
In this section we want only to make a brief mention to the important influence of Lex Mercatoria (Commercial Law) and Canon Law (the Law of the Roman catholic Church) in the historical development of
the Civil Law tradition.
In the case of Mexico we can mention as a very important collateral influence the one of the United States of America which transcended in shaping our constitutional system and our system of judicial precedents.
11.- The conceptualization of Law and the basic classifications of
the legal discipline.
25 For Civil Lawyers the Law is a cultural phenomenon which
aims to rule and coordinate social life in order to fulfill, among others, certain values such as justice peace and legal certitude, and to which purpose the government should provide the proper system to enforce the legal mandates.
This is the wide conception of the legal phenomenon. That is the Law (Derecho -lato sesu- , what in latin is known as Ius), but the concrete and effective expression of the Law are the legal provisions. (Derecho -strictu sensu-, what in latin is known as lex).
.In that sense the law (lex) is made of provisions containing general, abstract and impersonal principles from which more legal consequences are to be developed.
According to their view, strongly influenced by their
rationalistic and scholastic education, the Civil Lawyer explains and constructs the legal discipline in a logic and coherent manner, as if it were
" , ,
26 any other field of knowledge.
Therefore, as we have said before, for them the basic classification of the legal discipline is that which distinguishes between Private and Public Law.
Private Law makes reference to such areas as Civil Law (strictu sensu, including rules on persons, real estate, successions, obligations, contracts, etc.) and Commercial Law.36 Private Law makes
I reference to the relations between private individuals.
Public Law makes reference to study of Constitutional and Administrative Law. Public Law concerns to the organization of the State, the Government and the relations between the Government and private individuals as well as between the Government an other sovereign States.
36 These criteria of classification make reference to those areas of the legal discipline which are "autonomous". However the specific subject matters included in one ore other field are as relative as the person who is making the classification and the context of the system which is being classified.
27
At the beginning of the twentieth century, a new classification arose, that is the Social Interest Law.
This classification of the legal discipline set the principles to organize and protect the rights of the different groups and classes of social interest such as workers, peasants and under-protected low income groups.
The Social Interest Law also provides rules to govern the relations between social interest groups and private individuals, as well as the relations between social interest groups and the State.
This new classification of the Legal Discipline arose as an
answer to social changes. .
At this moment, we would like to mention that in our days such recent developments as the globalization of the world economies, the
28 environmental problems and the increasing interest in protecting human rights, among other aspects, have placed humankind in a new historical dimension.
Therefore, in our opinionwe are observing the emerging of a new field in the Legal Discipline.
One in which the law is not determined by the interest of private individuals, not by the interest of the State or Government, or for the protection of social interest groups, but to preserve the basic an lundamental rights of humankind.
'We will call that classification the Humanitarian Interest Law.
This topic shall be furtherly developed in the presentation devoted tho the Legal Framework in Mexico and the sources of the law in
29 our country, then, at this moment we shall make just as a general reference to the subject mentioning those sources to which a Civil Lawyer will occur when making legal research or facing an actual problem.
a.- Legal doctrine.
Legal doctrine makes reference to the work of scholars. It may contain note, commentaries and discussions on the fundamental principles, concepts, terms and institutions of any branch of law.
Its authority depends on the prestige of the scholars involved. from time to time, foreign scholars are cited in areas which influence is referred to the country of that scholfl;".
b.- Legislation. ,
In its broadest sense it makes reference to statutes and regulations, as well as to any other set of rules issued by governmental
30 agencies. Its authority will depend on several criteria dealing mainly with its hierarchical value an the jurisdiction of the issuing agency.
c.- Judicial precedents.
Judicial rulings generally only have a recommendatory authority, although certain decisions can be mandatory or have such a !>restige as to determine future controversies.
d.- Other documentary sources.
This includes all kinds of legal documents, such as contracts, permits, etc. They can give the researcher more information about the matter but they do not have any legal authority.
,
e.- Customary practices.
Customary practices are a source of law when the public
31 Dpinion deems that certain practice is legally mandatory. The customary practices are usually classified as secundum legem, praetra legem and contra legem.
This topic makes reference to one of the fundamental and more pragmatic problems in Comparative Law and in the international practice of Law. It goes to the question of how are our colleges focusing to one
-' specific problem and how are they elaborating the same.
At this point we realize that one can not understand the legal world of today without looking at the cultural and historical antecedents that we have been presenting in this work, because as Justice Cardozo pointed out "history, in illuminating the past, illuminates the present, and
in illuminating the present, illuminates the future."} 7
37 CARDOZO, Benjamin N., The Nature of the Judicial Process, New Haven, Yale University Press. P. 53
32
Therefore, studying the historical developments of the Civil Law tradition it is obvious that the attitude of the Civil Lawyer toward the legal discipline and legal problems is rationalistic orientated, scholastic and deductive.
DEAK and RHEINSTEIN explained legal reasoning in the Civil Law tradition in one way which seem to be illustrative, commenting that beginning from a small number of very general concepts and precepts at the starting point, Civil Lawyers deductibly develop successive ranges of less and less general abstractions, categories and principles until finally, on the lower level of abstraction, they laid out the specific rules governing concrete fact situation.38
Again we share expectations with Justice Homes when he .
38 Cfr. DEAK and RHEINSTEI, "The Development of French and German Law", 24 Georgia Law Journal 551 (1966) cited by SCHLESINGER, Rudolph B.; BAADE, Hans W .; DAMASKA, Mirjan R.; HERZOG, Peter E.; Comparative Law, cases-text-materlals, Loc. Cit. P. 274.
33 wrote: "1 have little hope that I shall be able to state the formula which will rationalize this process for myself ,…" 39 And we continue thinking with him that this is also "an attempt to uncover the nature of the process by one who is himself an active agent."4 O
We have tried to reconstruct the process of legal reasoning followed by a Civil Lawyer, and we have identified the following steps:
a.- Once the problem is identified in its facts, the lawyer make an abstraction in order to determine the fundamental notes and the nature of the legal institutions involved in the problem.
b.- Once the legal nature of the problew is determined, the lawyer goes to the legal doctrine and once again checl.~s the nature of the
, problem. At this point the lawyer shall try through the deductive method to focus the specific legal status of the problem at hand.
39 CARDOZO, Benjamin N., The Nature of the Judicial Process, Lac. Cit. P. 13 40 Idem .
34
c.- Having the doctrinal legal status of the problem, the lawyer will look after the principles and rules contained in the legislation. Further commentaries will come out from the confrontation of legal doctrine and statutory law.
d.- The following step shall be to look after how those principles have been interpreted or constructed by judicial decisions.
e.- Only at this point, the lawyer will look after other documentary sources.
f.- Finally, the researcher will arrive to the conclusions of the investigation and will produce a proper document containing the same.
Octavio Paz, the Mexican writer who won the Nobel Prize for
Profesor
Carlos A. Gabuardi
ITESM Campus Monterrey