COMPARATIVE LAW: LATIN AMERICAN LAW
Professor: Angel Oquendo
Semester: Spring 2013
Ch 1 – The Civil Law Tradition as Context
A.
1. Private LawàCivil Law (regulates the relationships between individuals or private entities and only private matters that concern the civil code).
2. Analogous to constitutional law in the U.S as the position it occupies
3. Systems of law=like family/share certain features.
B. Roman Law – Has heavily influenced all of Western law
C. Canon Law
1. Church lawàHierarchy
2. Regained its position gradually
3. Equitable principles/ moral dimension of disputes
D. Commercial Law – Law Merchant-regulated business affairs
E. Revival of Roman Law – Not only the rediscovery of the writings compiled by Justinian, but the scholastic method of analyzing and synthesizing and teaching of law in universities of Europeàroot of the Western legal tradition.
G. National Law – Nation states began to assert what they called their individual sovereignty.
H. Codification – the logical consequence of legal nationalization was codification. (code served as the sole source of law). Purpose to limit judges’ discretion and proclaim the will of the people. Main example for civilian jurisdictions:
· French Civil code: inspired Latin American Countries- Chile, Venezuela…no room for interpretation of judges, just read the statute
· German Civil Code: addressed to the professional lawyer instead of the citizen, very precise, only experts understand the abstract language
K. Decodification – Reconsideration of matters in the code from a social democratic perspective==constitutional provisions, specialized statutes, scholarly interpretations… (ex. Labor law: to further social objectives and interest of employees).
N. Public Law v. Private Law
Public law consists basically of administrative and constitutional law.
O. Convergence
· Of Codification and common law (judge made law)à20th century began to converge in conception and practice.
Ch 2 – Latin American Law at Its Origins
Spanish and Portuguese influences of their institutions in the New World.
The law brought from Europe was mostly private law and public law was to a great extent created with influences from Europe.
The effect of the European Conquest on Latin America:
In the U.S. – despite the conquest most of the indigenous structure was kept in place.
Spanish and Portuguese did the same, they kept the structures the same in the colonies.
D. Law of the Indies – (Indiano Law) new law created as part of conquest. Administrative/constitutional laws. It is composed of two different bodies of law:
Portuguese law (in Brazil)
Castilian (in the Spanish colonies)
The European conquest:
i. set up uniform juridical institutions
ii. destroyed indigenous legal structures throughout the region
When LA became independent, the colonies became individual ‘countries’ now.
That’s when they produced many constitutions as well as constitutional law treatises.
Latin American countries have consistently looked to Europe as a model. However, in Latin America, they will tend to interpret the law differently, in a different social context.
Perez Perdomo (Venezuelan Legal Scholar) – Iberian colonization which brought the predominance of the Catholic religion, Spanish and Portuguese languages, and presence of customs and values similar to those of southeastern Europe.
Human Rights issues
Military dictatorships came into existence. Although the military dictatorships of previous eras have vanished, the still constitute a latent threat.
Abuse of authority continues to take place within the popularly elected civilian governments.
There has been a real effort to build democratic and legal governments. Many countries have established judicial mechanisms to protect basic constitutional rights. Individuals may challenge a violation of these rights, sometimes even in supranational tribunal. There is an enormous discrepancy between legal norm and reality in Latin America.
In Private Law – some countries adopted verbatim codes prepared elsewhere in the region. (Ex. Colombia, Panama, El Salvador, Ecuador, Nicaragua, and Honduras enacted the Chilean code of 1855), written mostly by Venezuelan Andres Bello.
In Public Law – LA countries principally followed French and U.S. models.
The first really innovative LA constitution was the Mexican Constitution of 1917. It stressed economic nationalism, group obligations, and duties owed to society as a whole.
PART TWO – CONSTITUTIONAL LAW
Ch 3 – Constitution as Catharsis
A. Constitutionalism in Latin America (as differentiated and influence by the U.S.)
LA constitutions were inspired by Spanish, French and especially the U.S constitutionsàgranted individual rights at first then grew to incorporate social welfare values and address contemporary issues.
In LA the judiciary does not have the authority to invalidate unconstitutional statutes when deciding individual claims.
The judiciary has the power declare laws inapplicable to a specific case and the highest tribunal can conduct abstract review in unconstitutionality actions.
Writs of Protection and Security – enable individuals summarily to vindicate their rights via a specialized procedure.
The Right of Habeas Data – (emerged in 1980’s -90s) – entitles people to access, as well as to correct, information about them stored in public data bases.
Constitutions have not contributed to social, political, or economic stability in LA. They have not only been subject to frequent amendments, but also have had relatively short life spans.
B. The Constitutional End of the Mexican Revolution
a. The U.S. Const. is short and details are regulated through statute. By US standards, Mexico has a long and unwieldy Constitution. Mexican Constitution is way more Progressive than the U.S and gives individual’s ample social and economic rights (housing, education, health, work).
b. The Constitutional Controversy: Over 300 indigenous groups filed “constitutional controversy” actions against the reform. They challenged the content and underlying procedure…and the Supreme Court rejected these objections.
c. Case: Municipality of Yecapixtla v. Congr. of the Union et. al. (Mexico)
d. THE WHOLE CASE IS ABOUT A CHALLENGE TO THE PROCEDURE OF AMENDMENT regarding the indigenous rights.
e. Reasoning: Article 105 establishes that constitutional controversies does not include the power to amend the constitution.
f. The procedure to change the constitution was taken from the U.S. 2/3ds of each branch of congress and then 3/4ths of each state legislature in the U.S to pass an amendment.
· Court suggests that you can’t say that an Article of the Constitution is unconstitutional.
· If the Supreme Court decides a case 4 times by a supermajority then it becomes binding precedent.
o In Civil law tradition (there is no binding precedent, but there are exceptions.)
· Jurisprudential Theses are like explicit holdings that can become binding if 4 in a row. (Way of limiting judicial power) as opposed to the U.S anything in the Supreme Court says is binding. **It is the theses that become binding, not the decisions.**
· In Civil Law Tradition there is more uneasiness with Judicial Power than in the U.S.
C. The Brazilian 1988 Constitution: Celebrating the End of Dictatorship
· Brazil has an enormous Constitution
· Brazil has only minimal system of binding legal precedent, the courts decide the same constitutional issues many times over. There’s an overwhelming caseload, no device like writ of certiorari, they decide cases rapidly because of large caseload. It needs reform of its judicial review process/need a device to enable SC to avoid deciding so many cases.
E. When Constitutionalism Breaks Down: Venezuela’s 1999 Constitutional Crisis
· In 1998, Chavez took presidency and promised the people he would fix all the system and bring a new constitution to life.
· Not only did the assembly take the task of remaking the constitution but concentrated on regulating and ultimately displacing the branches of government in particularly the judiciary and the legislature.
· The assembly issued a decree granting itself the power to abolish government institutions and declared a “judicial emergency” to investigate the judiciary.
The Supreme Court’s Opinion (in reaction to the Judicial Emergency Decree to reorganize the judicial branch)
Case: In re Judicial Reorganization Decree S.C. (Venezuela)
Issue: Whether the d
ernor of the state appoint a public safety delegate?
· Holding: the actions of the state in appointing a municipality's public safety delegate are unconstitutional and therefore invalid. They constitute a usurpation of the authority that the federal Constitution confers upon the municipality.
· Conclusion: the invalidation of only provision 91 in the constitution only applies to the municipality of Rio Bravo.
D. DOMESTIC APPLICABILITY OF INTERNATIONAL LAW IN LAT. AMER.
· International Law often has a priority over domestic statutory law and normally Latin American countries declare ratified treaties to be part of the supreme law of the land.
· International human right laws important for LA countries to interpret their own domestic bill of rights.
· Virtually all Latin American countries have signed and ratified the 1969 American Convention on Human rights.
· All signatory Latin American countries have accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. (The U.S. has neither ratified the treaty nor recognized the tribunals binding authority).
· Evolving into kind of a constitution for the entire region –have only taken a first step on the way to a robust regional implementation of human rights and have received limited support from the organization in enforcing its determinations.
· In the U.S. – the Supreme Court has imposed restrictions on application of international law domestically.
· Charter of Organization of American States- only this part applies to the U.S.
· In Mexican unconstitutionality action on abortion the SC declares the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and all ratified treaties to be valid in Mexico.
· The “Right of Reply” Cases – concern the right that is included in the American Convention of Human Rights (center of gravity). This treaty has not been signed or ratified in the US.
1. The International “Right of Reply” – stems from an International Treaty Ekmedjian 1 and Ekmedjian 2 + see Avon Products Case Pg. 8
· In the two cases: Ekme sought a writ of protection based on his right of reply to television broadcasts that were repugnant to his convictions.
· Treaty that has not been signed or ratified by the U.S but is the center of gravity for the court of Inter American Human Rights.
· THE RIGHT OF REPLY STEMS FROM AN INTERNATIONAL TREATY
· Case 1. Ekme argued for the applicability of the American Convention on Human rights, which obliges signatory states to pass regulatory legislation for these rights.
· Holding: Even though the American Convention of Human Rights established the right of reply, the Supreme Court holds that in order to enforce the right, the legislature must pass a law regulating its procedure.
· Case 2. Ekme claims a right of reply under Article 33 of the constitution and Article 14(1) of the American Convention on Human rights. The treaty was approved 4 years before the action.
· Holding: Inter-American Court of Human Rights, whose role is to interpret the American convention on human rightsàmust be binding.
§ Concludes that Article 14 recognizes an internationally enforceable right to reply or to make a correction.
· Ekme II holds that ratified treaties become automatically valid law.
· Ekme II’s binding effect is equal to a class action in the U.S.
