The following is a guest post by Seth Brostoff, a legal metadata intern, who has been working at the Law Library of Congress for several months describing and creating metadata for a collection of Hispanic Legal Documents that span from the 15th to 19th centuries.
Now that the dust of the celebrations surrounding Cinco de Mayo has settled, this might be a better time for a more sober but certainly fascinating subject for our Mexicanists to ponder.
I thought it would be interesting to explore the relationship between the events surrounding Cinco de Mayo–the Mexican holiday commemorating Mexico’s victory over the French at the Battle of Puebla–and the history of Mexican codification.
As a civil law country, Mexico relies heavily on various codes (the Civil Code, the Commercial Code, etc.) for its primary legislation. Yet when Mexico started its movement towards independence from Spain in 1810, it was governed by Spanish law, which had not been codified. The movement to create a national civil code for Mexico only really begins with the Mexican Constitution of 1857, and with the rise to power of Benito Juárez, an indigenous lawyer of Zapotec ancestry who became, first, president of the Mexican Supreme Court, and soon after, the president of Mexico.
The Constitution of 1857 replaced the long dictatorial rule of Santa Anna, and its promulgation of new individual rights represented a movement towards liberalism and secularism. As part of Juárez’s larger agenda, to cement the reach and permanence of the constitutional settlement, the president entrusted Justo Sierra O’Reilly with the task of systematizing Mexican law in one national civil code. According to Cruz Barney, Sierra O’Reilly finally produced a draft civil code in 1860, largely based on Florencio García Goyena’s “proyecto,” a proposed Spanish-language adaptation of the Napoleonic Code, as well as other sources such as the Louisiana Civil Code. Before Sierra O’Reilly’s draft could be adopted, however, the French under Napoleon III invaded Mexico, and–despite an early Mexican victory on May 5, 1862 at the Battle of Puebla–forced Juárez and the Liberals from power and launched the Second Mexican Empire.
The French placed a sympathetic Austrian archduke on the Mexican throne as Emperor Maximilian I. The French intervention and Maximilian’s rise to power, however, did not end the process of codification. Indeed, Maximilian’s government appears to have adopted much of the commission’s work, revised various articles, and then promulgated the first two books of the short-lived Código Civil del Imperio Mexicano in 1866 (hereafter, the 1866 Civil Code).
A year later, the process of codification was interrupted once more by political events. In 1867, while the third book was at the printer’s and the fourth was under editorial review, Mexican forces expelled the French and executed Maximilian. The old Constitution of 1857 was restored, and the 1866 Civil Code was abrogated. The Mexican government returned to the codification project in 1868, drafting a new federal civil code which it finished in 1870. This second national civil code (hereafter, the 1870 Code) incorporated aspects of both Sierra O’Reilly’s 1861 draft civil code and the 1866 Civil Code. The 1870 Code was subsequently promulgated on December 8, 1870 and entered into effect on March 1, 1871.
This new national civil code was initially only applicable to Mexico’s Federal District (Mexico City) and Baja California territory (today, the Mexican states of Baja California and Baja California Sur), but in rapid order most Mexican states adopted the federal code verbatim as their new state civil codes.
Structurally, both the 1866 and 1870 Codes were divided into four books, titled 1. De las personas (Matters concerning personal rights and family law); 2. De los bienes, la propiedad y sus diferentes modificaciones (Matters concerning property law, including real property and moveable property); 3. De los contratos (Matters concerning the law of contracts, loans and mortgages, and other obligations); and 4. Sucesiones (Matters concerning succession, or the law of inheritance). The first title (or título preliminar) briefly describes the rules that jurists should use when interpreting and applying the code. The four books themselves are then divided into titles, chapters, and articles. The 1870 Code, for example, contains 4,126 separate articles. The Code’s structure in four books covering persons, property, obligations, and inheritance is more or less consistent with the division of subject matter in several other Latin American civil codes.
The 1850s and 1860s were important decades in the history of Latin American codification, and Mexico was no exception. What is interesting is that Mexican codification proceeded apace despite the foreign intervention and tremendous political upheaval that occurred during this period.
The Library possesses several general histories of Mexican law, as well as specific works on Mexican codification and its historical context, which may be of interest:
- Batiza, Rodolfo. Los orígenes de la codificación civil y su influencia en el derecho mexicano. 1st Edition. Mexico: Editorial Porrúa, 1982.
- Bautista García, Cecilia Adriana. Las disyuntivas del Estado y de la Iglesia en la consolidación del orden liberal: México, 1856-1910. Mexico City: El colegio de México, Centro de Estudios Históricos, 2012.
- Cruz Barney, Óscar. La codiﬁcación en México: 1821-1917: una aproximación. Mexico: Universidad Nacional Autónoma de México, 2004.
- González, María del Refugio. Historia del derecho mexicano. Mexico: Universidad Nacional Autónoma de México, 1998.
- Margadant S., Guillermo Floris. An Introduction to the History of Mexican Law. 1st English Ed. Dobbs Ferry, New York: Oceana Publications, 1983.
- Sánchez-Cordero Dávila, Jorge A., et al. Libro del cincuentenario del Código civil. Mexico: Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, 1978.