Carlos Soriano Cienfuegos

Present in all independent nations, the phenomenon of codification in Latin America shares the same concept of ‘code’ with the European laws of the Continental tradition in the modern age, resulting from the work of the rationalist school of law of the 16th to 18th Centuries: in effect, in the same way as at the end of the 18th Century and dawn of the 19th Century, the central and western European states undertook the codification of their laws, in Latin America, the recently emancipated countries set themselves the task of reducing the current regulations from a certain branch of law into a single organic unit at a determined historical moment.

In Mexico, an early case of reception, almost word-for-word, of the French Code civil, took place in Oaxaca, as even though it was incomplete, its Código civil was promulgated in parts between 1827 and 1829, prolonging its validity until 1836, when the centralized regime was introduced in the country, although the re-establishment of the Federation in 1847 brought with it a new validity of this regulatory text, in which the French model was present, almost absolutely, except for a few amendments, such as the unconditional protection in favor of the rights of aliens, or the adaptation of marriage to the canonic system.

In effect, with the re-establishment of the federation in 1847, civil codification once again returned to the hands of the states, but the efforts dedicated thereto did not lead to anything significant, also due to the many problems suffered by the nation, including the invasion of its territory by the United States of America, with the consequent loss of a huge part of the north.

On the contrary, commercial matters, under federal jurisdiction, were consolidated in a first regulatory text under the government of President Antonio López de Santa Anna, i.e., the first Código de comercio (Commercial Code), the preparation of which was the responsibility of the Minister Teodosio Lares, and which was officially sanctioned in May 1854.

The political events following the fall of Antonio López de Santa Anna finally led to the enactment of a new Federal Constitution in 1857, in virtue of the fact that during the preceding years the regime was based on centralism. However, the 1857 Constitution not only represented the triumph of federalism, but also, and perhaps more importantly, of the liberals over the conservatives. As a result, social movements appeared that once again led to the taking up of arms and even to the formation of two governments: one liberal, that of Benito Juárez, installed in Veracruz, and the other conservative, that of Zuloaga, in Mexico City, until 1861, when, after the toppling thereof, Juárez was able to return to the capital.

The declaration of bankruptcy protection issued by the Mexican Government provided the pretext for the arrival of the troops of Napoleon the Third on Mexican territory, who, as is well-known, were the instrument by means of which a Second Empire was established, this time offered by the Mexican conservatives themselves to the descendent of the House of Austria, Archduke Maximilian of Habsburg, who settled in Mexico City in 1864, and whose death by firing squad two hundred kilometers from the capital, in Querétaro, occurred in 1867, date on which the government of Juárez once again returned to Mexico City, leading to the triumph of the Republican movement.

This brief outlook of the turbulent 19th Century in Mexico can be used to understand the very reasonable delay in its codification process: to what has already been said on the subject it should now be added that in 1839 the jurist Juan Nepomuceno Rodríguez de San Miguel published his Pandectas Hispano-Mexicanas (Hispano-Mexican Digest), with the aim of substituting the lack of codes, but also with a clear intention of postponing liberal codification as much as possible, which was finally resumed at the start of the second half of the 19th Century.

In effect, it was during the government of President Juárez that in 1858 Justo Sierra was commissioned to write a civil code, who, taking the work of García Goyena as his basic model, completed the regulatory text in a couple of years, which could only be subject to review after its publication in 1861 under the name of Proyecto de un Código civil mexicano formado de orden del Supremo Gobierno (Draft of a Mexican Civil Code Formed by Order of the Supreme Government), and which was adopted by the State of Veracruz as civil ordinance at the end of the same year.

At the beginning of 1862, a new commission was formed to review the Justo Sierra draft, which continued its work until May the following year, with the French army already at the doors of the capital, but in virtue of the fact that several of its members did not flee given this event, the commission continued its work, now under the government of Maximilian, who in 1866 published the preliminary title and the first two books of a Código civil del Imperio Mejicano (Civil Code of the Mexican Empire), which although incomplete due to the interruption of the foreign government, was the first to be implemented nationwide. It should be noted that the amendments that the Justo Sierra draft underwent in virtue of the work of the commissions responsible for the matter between 1862 and 1863, and between 1864 and 1866, were many, until the Imperial Code was completed.

After the restoration of the Republic, it was inevitable that the efficacy of the regulatory text issued by the Emperor was interrupted, with the consequent renewal of the codification enterprise, although both the original draft by Sierra and the code of Maximilian were used as a basis for carrying out the task, without forgetting the documents produced by the review commissions themselves. In September 1867, a body was formed that concluded its work in January 1870. In December the same year, the Congress passed the draft submitted for its consideration and it was promulgated a few days later by President Juárez, entering into force in March 1871, as the Código civil del Distrito Federal y Territorio de la Baja California (Civil Code of the Federal District and Territory of Baja California), and although several states had gone ahead of the federation, it can be said that almost all of them adopted such text as their substantive civil code…

The structure of the 1870 Mexican code is based on the imperial text, which implies that ultimately it is modeling on the draft by Florencio García Goyena, in turn based on the Napoleonic code, but introduces provisions taken directly from the Portuguese code of 1867 under the authorship of Seabra, which at the same time was the most modern, and according to the opinion of Batiza, the 1869 Spanish mortgage act should be added as a direct source, and other provisions from Roman Law, from the Austrian, Sardinian and Dutch regulatory codes, indirectly. As a peculiarity of its system, it moves matters of succession to the last book of the legal text.

When General Porfirio Díaz began to govern Mexico, the 1870 code was in force, but in the sole interval in his long mandate, by order of President Manuel González, in 1882 a review commission of such regulatory text was formed, which would fulfill the presidential commission of proposing a draft that would basically provide, for reasons known to all, the elimination of the quota legitima and introduction of the free testamentifactio: in December 1883, Congress authorized the President of the Republic to reform the 1870 text, and as a result he promulgated a new code in March 1884, although in reality it was only the aforementioned reform and others of less importance, the validity of which was extended until 1932, when the vacatio legis of the 1928 code ended.

On the other hand, federal commercial matters continued with the process of preparing codes, so that in 1884 a new commercial text was enacted, which in 1889 was replaced by another Código de comercio, still valid today, albeit with reforms, and more important still, experiencing the de-codification of certain matters and the consequent rewriting of these contents in special laws.

In 1910, the revolutionary movement began in Mexico that soon overthrew the regime of General Porfirio Díaz, but which took a lot longer due to becoming a program of social demands. In 1917, the Constitución política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican States) was enacted, laying the foundations for a new social structure, for which the contents of the 1884 Código civil was behind the time, especially in aspects such as the concept of the family, which led to the introduction of divorce in 1914, and a Ley de Relaciones Familiares (Law on Family Relationships) in 1917, instead of the respective book of the civil text.

In 1926, a commission was set-up to prepare a new code for the Federal District (Mexico City), whose members notably included Ignacio García Téllez: in April 1928, the Exposición de motivos del Código civil (Preliminary Recitals of the Civil Code) was published (which attempted to put the “social” spirit of the new legislation into practice), posteriorly proceeding to publish the draft in the official gazette between the 26th of May and 31st of August the same year. Once enacted by the President of the Mexican Republic, it entered into full force and effect on the 1st of October 1932.

With regards to its structure, a heading of preliminary provisions can be seen and four subsequent books: persons; property; successions; and obligations, divided into a first part (obligations in general), and a second (different kinds of contracts); to which an untitled third part is added dedicated to personal bankruptcy and public real estate registries. Regarding the contents of the articles, the opinion of Batiza springs to mind: “In its original form, the Civil Code literally or almost literally reproduced 2578 articles of the ’70 code in 2297 of its 3044 articles, through the ’84 code and the Law on Family Relationships…”. For the rest of the articles, the Mexican constitutions and that of the Weimar were examined, as well as diverse texts such as the Swiss, French, Spanish, German, Russian, Chilean, Argentine, Brazilian, Uruguayan and Guatemalan codes. In terms of doctrines, authors such as Duguit, Saleilles, and Valverde stand out.

In virtue of the constitutional reforms that granted the recently created legislative body of the Federal District the ability to pass its own laws, the full text of this Mexican code was enacted and promulgated in the year 2000 as the Código civil federal (Federal Civil Code). In turn, the Federal District published its code in the same year and the states on the dates indicated in continuation: Aguascalientes, 1948; Baja California, 1974; Baja California Sur, 1996; Campeche, 1942; Chiapas, 1938 (together with the Family and Vulnerable Groups Code, 2006); Chihuahua, 1974; Coahuila, 1999; Colima, 1974; Durango, 1948; State of Mexico, 2002; Guanajuato, 1967; Guerrero, 1993; Hidalgo, 1940; Jalisco, 1995; Michoacan, 2008 (together with the Family Code, 2008); Morelos, 1994; Nayarit, 1981; Nuevo Leon, 1935; Oaxaca, 1944; Puebla, 1985; Queretaro, 2009; Quintana Roo, 1980; San Luis Potosi, 1946 (together with the Family Code, 2008); Sinaloa, 1940; Sonora, 1949; Tabasco, 1997; Tamaulipas, 1987; Tlaxcala, 1976; Veracruz, 1932; Yucatan, 1994; Zacatecas, 1986 (together with the Family Code, 1986).

The 1928 Mexican code was used as a model for the 1963 Guatemalan code (in force from the 1st of July 1964), as can be seen when examining its structure, which is practically identical, except for the exclusion of the preliminary provisions and a few changes in its expositive order. This Guatemalan text replaced a previous one, dating from 1933, the peculiarity of which consisted of not governing the subject of obligations, for which the nineteenth century code remained in force.