Statutory Interpretation in the Civil Codes: South-American Literalism and Blackstone
| Autor | Gerardo Caffera |
| Cargo | Universidad de la República, Montevideo, Uruguay; University of Oxford, Oxford, UK |
| Páginas | 165-213 |
STATUTORY INTERPRETATION IN THE CIVIL
CODES: SOUTH-AMERICAN LITERALISM AND
BLACKSTONE
Gerardo Caffera
1
Abstract
Willia m Blackstone, the renowned English legal scholar of the
eighteenth century, directly inuenced the drafting of the rules
of statutory interpretation of the Louisiana Civil Code, and in-
directly the r ules on the same subject of the Chilean Civil C ode
(1855). The Chilean rules were later borrowed in South America
by the drafters of the Civ il Codes of Ecuador (1858), Venezuela
(1862), Uruguay (1868) and Colombia (1887). I argue that Blac-
kstone’s inuence was sig nicant and ma rked dif ferences with
the civil tradition which, in turn, determined certain simi litu-
des with the literalism of English law of the nineteenth century.
However, South-American literal ism in statutor y interpretat ion
was not a copy but a creative response to local political rea lities.
From the research into this topic South-American drafters of le-
gislation emerge as both creat ive and critical users of legal ideas
from an amazingly w ide range of sources, unexpectedly inclu-
ding Anglo-A merican ones. What is more, the South-Amer ican
political context of mid-nineteenth centur y suggests that in the
subject of statutory interpretation comparative law argu ments,
up to a certain extent, were only rhetorical ly used.
Key wo rds: Statutory Int erpretation, S outh American Civil Codes, Loui siana Civil C ode,
Andrés Bello, Willi am Blackstone.
1. INTERPR ETATION AND STATUTES
1.1. A creative blend
Willia m Blackstone, a renowned English legal scholar of the eighteenth cen-
tury, directly inuenced the draft ing of the rules of statutor y interpretation of the
Louisiana Civ il Code (1825), and indirectly the rules on the same subject of the
Chilean Civi l Code (1855). Those rules provided that the literal meani ng should pre-
1 Universidad de la República, Montevideo, Uruguay; University of Oxford, Oxford, UK (gerardo.
caffera@law.ox.ac.uk).
Gerardo Caffera
166
LATIN AMERICAN LEGAL STUDIES Volume 1 (2017)
vail over legislative intent, and the “spirit” of the law. The Chilean rules were later
borrowed in South America by the dra fters of the Civil Codes of Ecua dor (1858),
Venezuela (1862), Uruguay (1868) and Colombia (1887).2
I w ill argue that th is i nuence wa s signicant, because of the marking diffe-
rences with the civil tradition, and similitudes with the strict litera lism of English
law. Furthermore, I will claim t hat in this matter, Andrés Bel lo, the drafter of the
Chilean Civi l Code (1855), and Tristán Narv aja, the drafter of the Uruguaya n Civil
Code (1868), also made a direct and creat ive use of the ideas of another Anglo-Ame-
rican author, James Kent, known as the American Blackstone, in order to relax some of
the strictures of the English approach.
More interesting, however, is the creativeness, and wealth of inspirational
sources that South-America n drafters of legislat ion put into use in the nineteenth
century. Traditional accounts portrayed them as sla vish im itators of the French Civil
Code.3 For example, López Medina has recently noted that:
On traditiona l and current maps of comparative law (…) ‘Latin Ame-
rican law’ ends up bei ng the basic legal str ucture of the Iberia n repu-
blics of the America s that replicates… post-revolutionar y law of repu-
blican Fra nce.4
However, a realistic assessment, which has been endorsed by several legal his -
torians in the last decades, shows that nineteenth-century South-American draf-
ters of the Civil Codes were both creat ive and critical users of legal ideas from an
amazingly wide ra nge of sources. I claim that Anglo-American legal ideas, should
be included amongst those relevantly used by the dr afters of South-American Civ il
Codes, as was the case in t he area of statutory interpretation analyzed in this article
What is more, as will be explained below, the South-American political context of
mid-nineteenth century suggest s that in the subject of statutory interpretation com-
parative law arguments, up to a certain extent, were only rhetorically used. Deta ils
aside, t he product was a creative blend which, a rguably, sti ll i nuences at titudes
towards statutory interpretat ion in South America.
1.2. Models of Interpretat ion
Statutory interpretation is the process of d iscerning the meaning of a statute
in order for it to be applied.5 When codication of private law took place in South
America, several models were avai lable as a source of inspiration.6 Thos e models
2 Those rules travelled also outside South America, to the Civil Codes of Nicaragua, Honduras and
Panamá.
3 See for example:
Watson
(1978), pp. 313-336.
4
López Medina
(2012), p. 348.
5
GreenaWaLt
(2002).
6 An excellent and comprehensive review of the topic can be found in
GuzMán Brito
(2011).
Statutory Interpretation in the Civil Codes: South-American Literalism and Blackstone
Volume 1 (2017) LATIN AMERICAN LEGAL STUDIES
167
could be found in legal norms, or in the ideas of legal scholars from the civil and the
common law tradition. For the purposes of this ar ticle, a number of concepts need to
be clar ied from the beg inning in order to allow for the histor ical and comparative
analysis that follows.
The rst point is that, while most models of statutory interpretat ion recognise
that judges have a role in interpreting statutory law, in the past, other models res-
tricted that tas k to the sovereign, or the legislature. Exa mples of the latter approach
were the ius commune maxim est enim e ius interpretar i cuius est concedere,7 or, the French
institution of the réfé ré au leg islatif.8 Those models were ai med at securing the mo-
nopoly of the sovereign, or the legislature, as the only source of law. In its modern
version, the réf éré was connected with t he doctrine of separation of powers postulated
by Montesquieu. 9 Its goal was to prevent judges from exercising a legislative func-
tion. However, as Blackstone, and the drafters of the Louisia na Civil Code of 1825
noted, ultimately the réfé ré allowed the legislatu re to become a judge, thus violating
the same principle of separation of powers.10
Second, within the models t hat admitt judicial interpretat ion, a further d istinc-
tion can be drawn between those models t hat includ e detailed legal ru les governi ng
the process of interpretation, and those that lac k such rules. The Louisiana C ivil
Code (1825) was an example of the rst, whi le the French Civil Code (1804) was an
example of the second.
Third, in rough terms , two methods of interpretation could be discerned by
the time t hat codicat ion took place in S outh America: t he literal method bas ed
on the plain meaning r ule, and the non-literal method based on the intention of the
legislature, and the reason (spirit) of the law. Literal interpretation focuses on the
meaning of words isolated or taken in light of their context. It prescr ibes different
ways of adjudicating meaning dependi ng on the sort of language used by the legi s-
lature. Non-literal interpretation, on the other hand, focuses on the spirit or reaso n of
the law or on the intention of the legisl ature. Instead of textual exegesis, the judges are
supposed to look closely at “the underlying rationales of texts a nd practices”.11
Lastly, among those models that prescribe ru les for the purpose of governing
judicial interpretation, a fur ther distinction can be d rawn between hierarchica l and
non-hierarchical models. As Greenawalt has noted, one of the most widely discus sed to-
pics in statutory interpretation is t he role that ought to be played respectively by the
“legislators’ ideas about what they have enacted and [the] readers’ understanding of
[those] enactments”. 12 In other words, and as Manni ng has put it, “the question of
7
pLuCknett
(2010), p. 329.
8
van CaeneGeM
(1992), p. 130.
9
van CaeneGeM
(1992), p. 130.
10 See sections 2.3 below.
11
GreenaWaLt
(2002), p. 269.
12
GreenaWaLt
(2002), p. 277.
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