LECTURE 4. LEGAL SYSTEMS OF COUNTRIES OF LATIN AMERICA

1. Formation of Legal Systems of Countries of Latin America

2. Codification and Sources of Latin American Law

3. Distinctive Features of Legal Systems of Countries of Latin

America

1. Formation of Legal Systems of Countries of Latin America

European colonisation of the territories of Central and South America entailed the dissemination of Romano-Germanic law. The codification undertaken in the fourteenth and twentieth centuries furthered the legal expansion of French, Spanish, Portuguese, and Italian codes.

The common historical fate of the Latin American States and the similarity of socio-economic system and political structure gave rise in the majority of them to similar legal institutions. The similarity of their legal systems was conditioned by this, which enables one to speak of Latin American law. To be sure, this does not exclude rather material differences in the law of a number of countries of Latin America from the general model (Cuba, for example). Nonetheless, the existence of such a model is entirely justified.

Many Western comparatists without reservation relegate the law of the countries of Latin America to the Romano-Germanic legal family. However, the need is heard to single out the law of the countries of Latin America. David suggested that Latin American law, although it belongs by structure and general features to the Romano-Germanic legal family, deserves in view of certain special features to be classified within the framework of that family as a separate group.

The closeness to the Romano-Germanic system is reflected above all in the fact that the basis of Latin American law is that it is codified law, the codes being structured along European models. From this follow the other features of similarity - a more or less analogous system of law and the abstract character of a legal norm.

The codification which occurred during the period following the gaining of State independence was the foundation for forming national legal systems. Whereas the codification of legislation conducted in European countries after revolutions was a summing up of the results of those revolutions, the codification of legislation in Latin American republics, on one hand, reflected a compromise of elements of precolonial and colonial law and, on the other, was a lever that facilitated ultimately the consolidation and development of new relations on the Latin American continent.

The Latin American countries were to a certain degree prepared by the character of colonial law to accept the European model of codification; that is, the law of Spain and Portugal carried over to the American continent by the conquerors and close to French law in its historical development.

When the young independent Latin American States required uniform national civil codes, the choice fell on French law. The law of Spain was rejected as the law of the former metropolitan. Moreover, it was not codified and because it was based on early Spanish customary law was fractionated and not homogeneous.

An ideological stimulus for accepting the French model was the tremendous influence which politico-legal doctrines of the Enlightenment have exerted on the revolutionary forces of the American continent in striving for national independence. As a whole the civil codes of the Latin American countries bore the imprint of the Code Napoleon, albeit to a different degree.