355 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
355
To a considerable degree, Latin American codes embrace the French
model on the relationship between legislation and adjudication.
23
Many of
them incorporate an equivalent not only of French Article 4, which holds the
judge liable for refusing to adjudicate because of the law’s silence, obscurity or
insufficiency,
24
but also of Article 5, which prohibits generally binding judicial
holdings.
25
Chile’s Code, like others throughout Latin America, insists on
the preeminence of statutes’ clear import over any possible construal of their
underlying purpose: “When a law’s meaning is clear, its literal import shall
not be disregarded under the pretext of consulting its spirit.”
26
While the process of codification begins with similar premises
everywhere, the specific form it takes ineluctably varies from one country to
the next. Moreover, the historical school, which German scholar Friedrich
Karl von Savigny most prominently defended, contributed a novel notion. It
proposed that the law should reflect the spirit of a particular people.
27
In Latin
America, this idea had substantial influence, especially on Andrés Bello.
28
In any event, Latin American codes began falling out of date
from their inception. They intensely continued down this path
from the twentieth century on. In response, legislatures have enacted
many specialized statutes in areas that have gained prominence since
codification, such as insurance, products liability, labor law, corporations,
etc
. In the absence of legislative action, courts have had to update the
code when these matters have arisen in concrete cases. Finally, legal
23
See
K
arst
& R
osenn
,
supra
note 12, at 45 (“The model that most appealed to the jurists designated to draft Latin
American codes during the middle of the 19th century was the French Civil Code (
Code Napoléon
), enacted in 1804.”)
;
Matthew C. Mirrow,
Borrowing Private Law in Latin America: Andrés Bello’s Use of the Code Napoléon in Drafting the Chilean Civil
Code
, 61
L
a
. L. R
ev
.
291, 305 (2001) (“When [Andrés] Bello was drafting the Civil Code, the
Code Napoléon
was widely
available, and he had ready access to this work. There is little doubt that the French Civil Code was the most famous and
highly appreciated civil code in circulation and that the French jurists who interpreted it were given the utmost respect.”)
.
24
Compare
C
d
. C
iv
. (
Fr.) (1804), art. 4
with
C
d
. C
iv
. (
Arg.) (1871), art. 15;
C
d
. C
iv
. (
D.R.) (1884), art. 4;
C
d
. C
iv
. (
Ecuad.)
(2005), art. 18;
C
d
. C
iv
. F
ed
.
(Mex.) (1928), art. 18;
C
d
. C
iv
. (
Peru) (1984), art. 8;
C
d
. C
iv
. (
P.R.) (1930), art. 7;
C
d
. C
iv
.
(
Para.) (1985), art. 6;
C
d
. C
iv
. (
Uru.) (1868), art. 15.
25
Compare
C
d
. C
iv
. (
Fr.) (1804), art. 5
with
C
d
. C
iv
. (
Chile) (1857), art. 3;
C
d
. C
iv
. (
Colom
.)
(1873), arts. 17 & 25;
C
d
.
C
iv
. (
D.R.) (1826), art. 5;
C
d
. C
iv
. (
Ecuad.) (2005), art. 3;
C
d
. C
iv
. (
Hond.) (1906), art. 4;
C
d
. C
iv
. (
Uru.) (1868), art. 12.
26
C
d
. C
iv
. (
Chile) (1857), art. 19.
See also
C
d
. C
iv
. (C
olom
.)
(1873), art. 27;
C
d
. C
iv
. (
Ecuad.) (2005), art. 18(1a);
C
d
. C
iv
.
(
Hond.) (1906), art. 17;
C
d
. C
iv
. (
P.R.) (1930), art. 14;
C
d
. C
iv
. (
Uru.) (1868), arts. 17;
C
d
. C
iv
. (
Venez.) (1982), art. 4.
27
See generally
F
riedrich
K
arl
von
S
avigny
, V
om
B
eruf
unserer
Z
eit
für
G
esetzgebung
und
R
echtswissenschaft
(2012) (arguing that every people has its own law, stemming from its own spirit and reflected in its customary legal prac-
tices). Savigny himself, however, opposed the process of codification in Germany.
See
Harold J. Berman & Charles J. Reid,
Jr.,
Roman Law in Europe and the Jus Commune: A Historical Overview with Emphasis on the New Legal Science of the Sixteenth Century
, 20
S
yracuse
J. I
nt
’
l
L. & C
om
.
1, 28 (“Savigny, the great founder of the historical school, opposed the codification of
German civil law in the early nineteenth century, his opposition was based in part on the argument that in the German
Länder
the time was not ripe for such a codification; in the later nineteenth century his followers were among the leaders
of the movement that produced the German Civil Code.”).
28
See
Mirrow,
supra
note 22, at 308 (“Bello was firmly in Savigny’s camp, and it is possible that Bello saw himself fulfilling
for Chile the agenda outlined in Savigny’s works.”).