Civil Law in Latin America
Although it is difficult to reduce a culturally and socio-economically diverse region such as Latin America to a single common denominator, certain commonalities nevertheless exist so as to allow a meaningful academic treatment of all Latin American countries. In addition to the shared Iberian heritage in respect of language and culture, this includes above all the legal roots shared by today’s Latin American jurisdictions.
Whereas the colonial legislation in Brazil and in the Spanish viceroyalties was to a great extent a homogenous derivative of the legislation in place in the principal Iberian cities, the New World countries quickly chose their own paths upon attaining independence. Carried by the pervasive 19th-century notion of codification, exceptional jurists such as Bello in Chile, Vélez Sarsfield in Argentinia and Teixeira de Freitas and Bevilaqua in Brazil drafted comprehensive and technically advanced civil codes. While the corresponding Códigos linked themselves on the one hand to their Iberian legacy, they were at the same time highly influenced by the contemporary European models, these including especially the French Code civil but also the work of German Pandekten scholars. Of particular significance, furthermore, were the early regional attempts at harmonisation, which later continued in regional groupings such as the Andean Community and the Mercosur.
The significance of comparative law in the Latin American realm is demonstrated by the fact that – much like the first Latin American civil codes – the civil law revisions undertaken or planned in recent years (especially in Brazil and Argentina) are the products of a substantial comparative consideration of European civil codes. While the influence of the European legal systems is also reflected in the area of civil procedure, the growing influence of (primarily North American) common law is prominent in the areas of commercial law, company law and securities law. Fields such as competition law are by and large US legal transplants, whose practical legal implementation, however, has thus far varied considerably from what is set down in the statutory text. This, in turn, highlights the need to pay special attention to practical legal realities in researching Latin American law.