Revista da EMERJ - V. 20 - N. 79 - Maio/Agosto - 2017

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 R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017  354
their national codes. Each of these societies paid attention broadly to
all available European legislation, but especially to Latin American law.
It primarily turned to its neighbors’ efforts because of the geographical,
cultural, linguistic, and legal proximity.18
In fact, some countries adopted verbatim codes prepared elsewhere
in the region. For instance, Colombia, Panama, El Salvador, Ecuador,
Venezuela, Nicaragua, and Honduras enacted the Chilean Code of 1857,
written mostly by the Venezuelan Andrés Bello. Other nations drew heavily
from it. This most influential codification effort constitutes a milestone
within the entire civil-law tradition and has had enormous influence
throughout Latin America.19
Civil Code drafters normally seek to achieve two goals. First,
they attempt to rationalize the law.20 Second, they seek to proclaim
the will of the people as represented by elected officials and rationally
elaborated by the drafting committee.21 These two objectives lead to
certain expectations regarding adjudication. For instance, courts must
regard and interpret the code as a coherent and integrated whole. 22
More importantly, they must strictly adhere to this democratically
enacted law when deciding concrete cases.
18 See generally Bravo Lira, supra note 14 (describing how Iberian American codifiers focused on models from elsewhere
in the region and from Continental Europe); Karst & Rosenn, supra note 12, at 45-47 (maintaining that code drafters in
Latin America turned not only to the French Civil Code but also to sources from all over the civil law universe. ).
19 See generally Bravo Lira, supra note 14 (noting that several Latin American nations enacted Chile’s Civil Code and that most
others drew heavily on it). See also Karst & Rosenn, supra note 12, at 47 (“Thus, the Chilean Code was virtually adopted in
its entirety in Ecuador and Colombia, and with slight modifications in El Salvador, Nicaragua, and Panama (until 1917).”).
20 See Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225, 237 (1998) (“In the civilian code model, a
statute is in contemplation self-contained. It is the product of deliberate reflection in terms of a unified structure of law
and a coherent and, at least in design, independent and complete intellectual product.”); Karst & Rosenn, supra note 12, at
47 (“These codes reflected the rationalist, utopian, and highly individualistic values of the Enlightenment and the French
Revolution.”); Merryman , supra note 1, at 29 (“If insistence on a total separation of legislative power from judicial power
dictated that the codes be complete, coherent, and clear, the prevailing spirit of optimistic rationalism persuaded those in
its spell that it was possible to draft systematic legislation that would have those characteristics. . . .”).
21 See generally Stein, supra note 12, at 252 (“It was the jurists who . . . prepared the ground for the codification movement
of the eighteenth century. But that movement was, in part at least, inspired by the layman’s suspicion both of jurists and
of judges and by a popular desire to weaken the power of both groups.”); Merryman, supra note 1, at 32 (“Germans, like
the French, have incorporated a sharp separation of powers into their system of law and government. It is the function
of the legislator to make law, and the judge must be prevented from doing so.”).
22 See, e.g., Cd . Civ. (Arg.) (2016), Art. 2 (“La ley debe ser interpretada teniendo en cuenta sus palabras, sus finalidades, las
leyes análogas, las disposiciones que surgen de los tratados sobre derechos humanos, los principios y los valores jurídicos,
de modo coherente con todo el ordenamiento.”) (“The law shall be interpreted taking into account its words, its aims,
analogous laws, the provisions of human rights treaties, and legal principles and values, in coherence with the order as a
whole.”). See also Strauss, supra note 19, at 235 (“[T]he Code Civile . . . has characteristics that support the more distinctly
separated judicial and legislative roles characteristic of western European legal systems. These statutes emerge in a single
legislative act, after exquisite intellectual consideration, as an integrated whole.”) ; Merryman, supra note 1, at 29 (“But if
the legislature alone could make laws and the judiciary could only apply them (or, at a later time, interpret and apply them),
such legislation had to be complete, coherent, and clear.”).