THE CODE NAPOLEON: BURIED BUT RULING IN LATIN AMERICA

摘要

When lawyers from different countries meet, they are likely to exchange almost phatic pleasantries about legal practice and their legal systems. Latin American lawyers visiting the United States invariably respond to inquiries about these matters with the observation that their system is based on the Napoleonic Code. This statement, of course, does not mean the same thing to a U.S. lawyer as it does to any European lawyer. It is an assertion of historically and culturally rooted equality or even superiority to the Anglo-American common law system. This short-hand reference to the French Civil Code of 1804 is a gross oversimplification, but one that continues today. Indeed, noted comparative lawyers and legal historians are partly to blame for such statements. In the United States, because our introductory law school literature tends to perpetuate it, lawyers are apt to believe this characterization of Latin American law. Echoing the great European comparativists, general Latin American literature also continues this description. It is a convenient short-hand comment, but unsoundly inaccurate. To say that Latin American law is centered on the Code Napoleon is similar to saying that United States law is based on Blackstone's Commentaries and that Belgian law is based on Justinian's Digest. There is some truth and some falsity to these statements and this study proposes to explore the historical and present-day significance of the Code in Latin America, particularly the Spanish-speaking countries.