By: Ralph G. Smith and Daniel Smith

The civil law system in most countries of Latin America is derived, basically, from the ancient Roman law, which had its beginning in 450 B.C., when the XII Tables were published in Rome. The Justinian Code, which was promulgated in 533 A.D., was a massive effort to recodify and resolve conflicts which had grown into the law in the 980 years of its existence up until that time. The Roman Law was, as the centuries rolled by, influenced by the Canon Law, and was received, changed and augmented through the centuries by the various regions subject to its influence. Deficiencies and abuses became evident as the years went by, particularly with regard to the criminal procedures. By the mid-Eighteenth Century there were many cries for reform. In 1764 what was to become “the most influential work on criminal procedure in Western history” was published. The book was Cesare Beccaria’s Of Crimes and Punishments. Beccaria started with two propositions that are the foundation blocks of the civil law: Nullum crimen sine lege and Nulla poena sine lege. He meant by this that no act can be a crime unless it is proscribed by a law, and no punishment can be imposed unless it is so set forth. This may seem to be elementary in this day and age, but not so when the book was published. Under feudal systems, the law was what the prince said it was, and little regard for human rights existed.

Beccaria set forth very convincing arguments against, among other things, torture, the death penalty, and, to strike a modern note, judicial interpretation of laws which resulted in judicial legislation. Consider the following:

“Nothing can be more dangerous than the popular axiom that it is necessary to consult the spirit of the laws. It is a dam that has given way to a torrent of opinions…. Each man has his own point of view, and, at each different time, a different one. Thus the ‘spirit’ of the law would be the product of a judge’s good or bad logic, of his good or bad digestion; it would depend on the violence of his passions, on the weakness of the accused, on the judge’s connections with him, and on all those minute factors that alter the appearances of an object in the fluctuating mind of man. Thus we see the lot of a citizen subjected to frequent changes in passing through different courts, and we see the lives of poor wretches become the victims of the false ratiocinations or of the momentary seething ill-humors of a judge who mistakes for a legitimate interpretation that vague product of the jumbled series of notions which his mind stirs up. Thus we see the same crimes differently punished at different times by the same court, for having consulted not the constant fixed voice of the law but the erring instability of interpretation.”

Beccaria’s treatise emphasizes the basic premise of the civil law system, which, though diluted somewhat, is still very much evident today. That premise is that only the legislative body “who represents the entire society united by the social contract” can promulgate laws, and, as a sub-premise, only the legislature can prescribe penalties for the violation of those laws.

The implementation of these pronouncements logically results in reducing the authority of the judge to a finder of facts who determines into which “box” a supposedly criminal action fits. If the legislature has provided no such box, the act is not a crime; if a box is found, then the judge need only look at its label to determine the exact punishment.

After Beccaria’s book came, the French Revolution, in which the reforms were attempted with, literally, a vengeance. French judges had been powerful individuals, interpreting the law as they saw fit. Judges were nothing more than tools of the oligarchy, and judgeships were actually regarded as property, which could be bought and sold and passed to one’s heirs as any other chattel.

The revolutionary reaction was to drastically curtail the role of the judge. The French for a time tried to institute a legal system patterned after the English common law, including the jury system. This was, incidentally, the first time juries had been used in continental courts. The transplant failed to take, but what was left contained mixed elements of both the old and the new.

Then came Napoleon, and in 1804, the Code Napoleon, the monumental effort which is the basis of most legal systems in Latin America. It attempted to do just what Beccaria had in mind, and, for better or for worse; it reduced the function of the judge to something akin to an administrative clerk. The viability of the Code Napoleon is a tribute to the lawyers who worked on it and complete

it within the very short time given them by the Emperor. Although attempts have been made to revise it completely the basic structure of the Code Napoleon retains its original form, the Code having been altered in piecemeal fashion to meet modern problems.

As may be seen from the foregoing outline, the civil law system is not something “off the wall” and inherently strange, as we common law lawyers sometimes might think from the little knowledge we have of it. The fact is that the roots of this system were established and working under written law at a time when the progenitors of the common law were still conducting trial by battle, by ordeal and the like.