Napoleon

Napoleon in America? Reflections on the Concept of ‘Legal Reception’ in the Light of the Civil Law Codification in Latin America I. It is quite common to talk about a process or ‘reception’ of French Code civil in Latin America.1 However, departing from a usual concept of ‘reception’ in the legal historiography as a process of “adoption of foreign cultural elements, when a people accepted predominant portions of a ‘foreign’ legal system voluntarily, without being overwhelmed or subjugated,”2 the issue turns out to be quite dubious, if the actual historical development of civil law codification in the Latin American countries is considered. The election of the concept ‘reception’ to be discussed here is not arbitrary or gratuitous, but it is due to the fact that comparative lawyers have mainly used it to refer to many processes of legal change in very different chronological, cultural and political circumstances throughout the history, with present echoes.3 Butitseemstoberatheranabuseofa technical term performed in legal history in order to describe a very precise legal phenomenon from a European perspective, what could perhaps be understood then as some kind of ‘Eurocentric’ vision of legal reality, not paying enough attention to the specific demands of other contexts than those which have especially influenced the building of such a methodological devise. The aim of this paper is then to try to specify some limits of this concept from a global perspective of legal phenomena in world history and to what extent it is still possible to go onto use it with any productive meaning.

II. In effect, in the first years following the independence of the Spanish American countries, in spite of the numerous attempts of legislating radical social changes on the levels of constitutional law, there were no radical changes in the field of private law. This phenomenon is due to different reasons. First of all, constitutional and legislative changes did not take immediate social effect; the constitutional modifications did little to change a reality where some types of people (mainly, Spanish descendents, clerics, especially property owners) were still socially privileged and other social groups (Indians, blacks, married women, the poor) continued to suffer from numerous private law incapacities. In many ways, the political and constitutional rhetoric was incapable of making immediate social change. Secondly, the main sources of private law remained the same, and so the private substantive law from the colonial period continued being in force in the new republics. The colonial sources of private law lived on well into the middle and, in many cases, the end of the nineteenth century. Dramatic changes in private law were not a product of independence, but they took place only during later and more stable periods.4 Nevertheless, it was clear that reform of private law could not be delayed or neglected forever. The very notion of the term independence meant that the new nations would have to be free of Spanish colonial law, or at least appear to be free of it, and the process of establishing national law was certainly encouraged by desires to create a new nation with its own laws. Actually, if private law did not face immediate change after independence, it was not for lack of direction or ideas. In fact, most constitutions of the new republics indicated the belief that legal reform was close at hand by asserting that the laws in force would remain like that until new laws were enacted by the legislatures. But just in the first years after the independence of the Hispanic American countries the idea of setting the private law of the different states in accordance with the new circumstances emerged, as much as the surviving colonial legislation still in force was strongly criticized. There was, however, a big difference between proposing to have the law fixed, even with some developed plans, on the one hand, and the actual performance of such a settlement of the law through articulated texts, namely to establish new authoritative legislative bodies able to efficiently replace the precedent colonial legal order, on the other hand. There were actually two possible parties in the different countries: