353 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
353
III. Codification
By and large, Latin American countries share a civil law with each other
and with their Continental European counterparts. The various national
civil codes reflect this commonality, as well as substantial differences. They
converge on their origins and aims, but diverge on their details.
12
In Latin America, as well as in Continental Europe, codification
ensued almost as a logical consequence of legal nationalization. Insofar as the
nation-state intended to assert national law, it tended to do so systematically.
In other words, it typically put forth a code that served as the sole source of
law. The nationalized polity thus decided directly and explicitly what legal
norms to apply within its jurisdiction. Of course, it could still hold on to
those aspects of the European common law that it wanted to enforce in its
domain.
13
As the codification process unfolded, Latin American countries were
on their way out of the colonial fold. By 1822, most of them had achieved
independence.
14
Latin America therefore took the road to codification on its
own. In fact, it did so earlier and more decisively than the former colonial
powers.
15
After independence, the official legal unity of Latin America came
to an end. The different territories broke off from the overarching imperial
realm of law and became separate jurisdictions. Nonetheless, the pre-existing
substantive legal cohesion largely endured.
16
The new national regimes preserved Spanish and Portuguese private
law, respectively, until they completed the protracted process of codification.
They engaged in “intensive comparative study of texts”
17
in order to produce
12
See generally
Part II
supra
(stressing the convergence among civil law regimes, while acknowledging important differences).
13
See generally
Peter G. Stein,
Judge and Jurist in the Civil Law: A Historical Interpretation
, 46
L
a
. L. R
ev
. 241, 248 (1985) (“In
the sixteenth century, . . . the various nation-states began to assert what they called their individual sovereignty. This meant
that their supreme courts saw themselves as exponents . . . of the particular law of the state. . . . The
ius commune
might be
received or it might not, depending on the suitability of the rule in question to the needs of the state; and this decision
was the courts’.”);
K
enneth
L. K
arst
& K
eith
S. R
osenn
, L
aw
and
D
evelopment
in
L
atin
A
merica
44 (1975) (“Codi-
fication: Independence stimulated the desire to remake basic legal structures. One reason was to stabilize and consolidate
new national regimes.”).
14
See
K
arst
& R
osenn
,
supra
note 12, at 42 (“By 1822, after prolonged and bitter fighting, most of the Latin American
nations had achieved or were on the verge of achieving independence.”)
.
15
See generally
Bernardino Bravo Lira,
Codificación Civil en Ibero-américa y en la Península Ibérica (1827-1917): Derecho Nacional
y Europeización
,
in
F
uentes
ideológicas
y
normativas
de
la
codificación
latinoamericana
(Abelardo Levaggi coord.,
1992) (contending that Latin American countries undertook codification earlier, more independently, and more decidedly
than Spain or Portugal).
16
See generally id
. (explaining that after independence, Iberian American jurisdictions continued to apply substantive Span-
ish and Portuguese private law).
17 John Merryman coined this expression in John H. Merryman,
Comparative Law Scholarship
, 21
H
astings
I
nt
’
l
& C
omp
.
L. R
ev
.
771, 773 (1998).