Law In Latin America Research Paper

There is no such a thing as Latin American law, since the nations each have completely independent legal systems. The issues to be discussed here are whether there are general features of these legal systems and if their legal culture could be distinguished from that of the colonizing countries.

Latin America is usually placed in the civil law, or Roman law, tradition. The main reason for this inclusion is the colonial link to the Latin countries of Europe. In fact, the way law is taught and practiced, as well as the place of judges and legal scholars in society, are quite similar in Latin Europe and Latin America. But there are significant differences due mostly to the more heterogeneous character of Latin American societies. The history of Latin American countries is usually divided into the pre-Columbian, the colonial, and the national periods. The pre-Columbian goes up to the sixteenth century; the colonial, from the sixteenth to the early nineteenth centuries, and the national covers the nineteenth and twentieth centuries. The pre-Columbian period can hardly be called Latin, but is included because it is a part of the history or prehistory of each country. The Spanish kings decreed that those indigenous customs not contrary to the Catholic faith should be applied to their Indians subjects and they should keep their ‘principals.’ In fact, very little pre-Columbian political organization and law survived the colonization.

During the colonial period, Castilian law was applicable in the Spanish dominions to the White and Mestizo population. There were special royal regulations that applied only to the colonies—the so-called the Indiano law. The main official compilation is the Recopilacion de Leyes de Indias (1680). There was not an equivalent compilation for Brazil. Modern historians prefer to call derecho indiano the law as it was applied in the colonies. The legislation tended to be uniform for all Spanish colonies, as it was for the different parts of Brazil. The structure of colonial administration (King—colonial council—viceroys— audiencias) and the mechanisms of administrative and judicial control ( isita and residencia) were similar for Spain and Portugal.

Universities and law schools were established from the early sixteenth century onwards in several Spanish American cities (Santo Domingo, 1538; Mexico, 1551; Lima, 1551; Quito, 1586; Cuzco, 1598). By the early nineteenth century there were law schools in the main cities and several thousand lawyers were part of the political elite in the different countries. Portugal followed a different path and no university or law school was established in colonial Brazil, but wealthy colonists educated their scions in Coimbra. Two were established in 1826, shortly after independence. By 1830 there were near 500 bachareis em direito in the country.

Lawyers were extremely important during the independence period in the early nineteenth century. They drafted constitutions and were conspicuous members of congresses and cabinets. Their political and social importance is parallel to the proliferation of constitutions in the early nineteenth century. The Spanish and Portuguese legislation survived independence, but there were strong movements for a national law that usually led to national codes in the second part of nineteenth century. In fact, the codes are quite similar to the European codes. A scholarly tradition dating from the colonial period in the most important capitals extended to most countries during the nineteenth and twentieth centuries.

The number of lawyers grew slowly in the nineteenth and early twentieth centuries, but they kept a high political profile. By mid-twentieth century the growth pace increased substantially due to the generalization of higher education and increased legal Activity related to the economic growth. The codes became relatively less important due to the proliferation of regulatory legislation. A substantial effort of judicial reform and an increased political and social importance of judges characterize the late twentieth century. Since the mid- 1980s there have been important deregulation efforts.

Latin American legal culture has been characterized in many different ways. Legalism, formalism and, at the same time, lack of penetration of the formal legal system, are usually noted (for example, Karst 1965). Many Latin American countries have an important native population, mostly rural, and in all of them the urban population has a high proportion of poor and very poor people. Cultural and economic factors lead them to avoid the formal legal system and have serious difficulties when they encounter it. This is the root of the lack of penetration of the formal legal system, or more appropriately, of legal pluralism in Latin America. This distinguishes the Latin America legal culture from that of Latin Europe.

The importance of law and lawyers has coexisted with dictatorships, local caudillos, and political turbulence. The heterogeneous character of society and the fear of disorder or anarchy are at the root of strong men government and the sometimes massive violations of human rights. The primary difference between Latin American and European dictators is that the former have paid more attention to constitutional formalities. They usually change the constitution to accommodate to their needs. Nevertheless, the tendency in the last 25 years of the twentieth century has been for democratization and rule of law. This new trend is closely related to the increased importance of judges and judicial reform efforts.

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