356 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
356
scholars have heavily expounded the existing provisions in an attempt
to offer guidance for the judiciary, as well as for lawmakers.
29
For example, civil codes in Latin America, as in France and elsewhere,
have required considerable updating in light of their antiquated, sexist
view of the role of women in the family and in society. Literally following
the original French Article 213, Article 128 of the Uruguayan Civil Code
declares, for instance, that “the husband shall protect the wife and the wife
shall obey him.”
30
The Uruguayan legislature implicitly derogated this
provision with the 1946 Women’s Civil Capacity Act.
31
Similarly, Andrés Bello’s Civil Code for Chile embraces the initial French
position by banning paternity suits. In 1998, the Chilean Congress introduced
Article 195, expressly allowing judicial inquiries into filiation.
32
Nonetheless,
Chile’s Supreme Court appears to have undermined the legislative intent of
that provision by requiring extensive documentary support for that kind of
complaint.
33
On a more positive note, the same tribunal has discretely moved
away from the codified presumption that, upon separation, the mother must
“take personal charge of the children’s care.”
34
Lawmakers, judges, and scholars have thus preserved the Code from
desuetude. As a result, however, they have increasingly led people to look
elsewhere for solutions to legal problems. In their effort to maintain its
relevance, these actors have, ultimately and paradoxically, rendered the
document ever more irrelevant.
35
Throughout the region, legislative microsystems have cropped up and
judicial as well as administrative institutions have taken over entire areas
of law.
36
In the twentieth and even twenty-first centuries, moreover, Latin
American lawmakers have often distanced themselves from their French
or German counterparts by commissioning completely new, ideologically
29
See generally
John H. Merryman,
How Others Do It: The French and the German Judiciaries
, 61
S. C
al
. L. R
ev
. 1865, 1868-70
(1988) (“Decodification is taking place in several ways. . . . Important microsystems of statutory law have grown up on
a variety of civil code topics. . . . Parallel to the growth of statutory microsystems is the growth of equally important
systems of judge-made law.”).
30 Cd. Civ. (Uru.) (1868), art. 128.
31 L. 10783 (Uru.) (1946), art. 1.
32 L. 19585 (Chile) (1998), art. 195.
33
See
Báez Sierra v. Dinamarca Henríquez, Rol No. 461-01 (Supr. Ct.) (Chile) (2002); Espinoza González v. Álvarez Díaz,
Rol No. 2518-01 (Supr. Ct.) (Chile) (2002).
34
C
d
. C
iv
. (
Chile) (1857), art. 225.
See
In Re
Carracedo Alvarado, Rol No. 1620-01 (Supr. Ct.) (Chile) (2001).
35
See generally
Merryman,
supra
note 28, at 1869 (“As the amount of special legislation grows, the codes increasingly
become a body of residual law to be turned to only if some more specific provision of special legislation cannot be
found. In this way the body of law the judge is called to apply loses its ideological coherence. . . . The code provisions are
so rudimentary and so empty of substance that judges have had to create the applicable law on a case-by-case basis.”).
36
See generally id
.
See also
id
. at 1870 (“A further aspect of the decline of legislation and the codes is found in the growth
of public administrations.”).