Scripta Non Manent

Mar 19

Amer Goel

All quotes have been translated into English by Amer, who speaks Portuguese and Spanish, and may not reflect nuance or retain original meaning.

¡Viva la revolución! Independência ou Morte! Vive la révolution!

Over a century after their birth, these impassioned calls for revolution—once echoing hopes of self-governance across Spain and Portugal's colonial domains—have become the echoes of unfulfilled aspirations. Under newfound independence, numerous Latin American nations grappled with a series of political upheavals and constitutional overhauls, driven by persistent discontent with legal failures. Such constitutional instability often stems from governmental corruption and indifference but is fundamentally rooted in inherent deficiencies of the law. This is evident in a series of Latin American constitutions, whose texts reveal a pattern of indistinct separations of governmental powers and unclear mandates that weaken law enforcement and governance. The bureaucratic machinery and the judiciary rule of law enshrined in these documents lack the legal robustness necessary for effective governance.

To understand the roots of these failures, it is important to understand how the laws evolved. The language that contemporary constitutions use often appears precise and well-crafted, hiding underlying flaws beneath a veneer of specific and standardized language. However, close examination of the structure and language of historical legal codes reveals fundamental shortcomings. These insights can be applied to modern legal text to uncover similar inadequacies in their structure.

The start of the inadequacy can be traced back to late colonial law. The inconsistencies present in these laws are reflected in post-independence Constitutions of Brazil, Mexico, and Chile, which continued to be ambiguous as they were rewritten and reworked throughout the 19th and 20th centuries. These problems that were first allowed by colonial laws persist, which remain plagued by a pattern of debilitated enforcement and weak judicial interpretation.

This piece will proceed by presenting lists of quotes from relevant legal texts in chronological order, considering discussions of judiciary and bureaucracy in all of them. Subsequently, it will present an analysis that highlights legal inadequacies and traces the flaws in language through history up to modern texts. It will become clear by the end that even the well-written, modern constitutions of Latin America exhibit the same problems as the codes of law from which they were derived.

The first important colonial body of text to consider is the Leyes de Indias, a broad set of laws and principles that governed Spanish colonial territories.

First, some quotes about the colonial judiciary. (Book 1, Title 10, Laws 2, 16):

“The proper administration of justice is in the manner which ensures the security and calm of all states.” (Law 2)
“That religion is not used by judges, except in permitted cases, and as they should.” (Law 16)

Next, some important laws about the bureaucracy. (Book 2, Title 16, Laws 1, 10, 11)

“Presidents provide that which is convenient to the public and city governments” (Law 10)
“That viceroys be presidents of [juries] and govern districts as they should” (Law 1)
“That presidents have good correspondence with [juries] and are respected” (Law 11)

The Ordenações Filipinas, a similar code of law for Portuguese colonies in Brazil, has similar language regarding the roles of legal/judicial officials. Some quotes to consider (Book 1):

“The [attorney general] should promote justice, and has responsibilities of all things that relate to justice, with respect to diligence, and without negligence” (Title 15)
“The [solicitor general] should be diligent so that by their laziness and negligence the facts of justice are not expanded” (Title 25)

Similar to the Leyes de Indias, Portuguese colonies emphasized religious law over secular law, so secular executive authority was given vague jurisdiction. A quote to consider (Book 2):

“In those cases that proceed ordinarily that are not suitable to process through [religious] censures…the help of the secular branch will be [asked for]” (Title 8)

Next, we consider Constitutions drafted after independence. Those that are most well preserved are the Constitutions of Brazil, Mexico, and Chile, so they will be used to track the evolution of legal inadequacy through history. To start, consider some important quotes about judicial power from post-colonial constitutions:

“The independent judicial power will be composed of judges and juries, of which will determine civil and criminal cases, in the mode which the [law] determines” (Constitution of Brazil 1824, Article 151)
“Remove employees for ineptitude or some other reason that makes them useless or prejudiced in service, with the agreement of the senate…and higher-ups” (Constitution of Chile 1833, Article 81)
“The responsibilities of the Supreme Court include ending disputes that happen regarding contracts or negotiations recognized by the supreme government or its agencies” (Constitution of Mexico 1824, Article 137)

Now for a look at the bureaucracy. Some important quotes:

“Provide for everything that concerns the internal and external security of the State, in accordance with the Constitution” (Constitution of Brazil 1824 Article 102)
“The president of the republic…authority [extends] to all that has to do with the conservation of public order in the interior, and the security of the republic, guarding the Constitution and its laws.” (Constitution of Chile 1824 Article 81)
“The responsibilities of the president include: (1) Publicating, circulating, and guarding the laws and decrees of congress…(3) Executing the laws to conserve the integrity of the federation and sustaining its independence on the outside, and its union and freedom on the inside.” Constitution of Mexico Article 1824 110)

Lastly, we consider the most recently adopted Constitutions, which currently serve as lex terrae (law of the land) for their countries. Some of these constitutions, like Chile’s, have been disputed since their ratification, showing continuing dissatisfaction with their content.

“It is of the exclusive competence of the courts: to elect their directive bodies and to draw up their internal regulations, in compliance with the rules of proceedings and the procedural guarantees of the parties, and regulating the competence and the operation of the respective jurisdictional and administrative bodies“ (Constitution of Brazil 1988 Article 96)
“The judicial power is fundamentally made of the Tribunals of Justice, which correspond to the faculty of knowledge of civil and criminal cases, how to resolve them, and how to exercise judgment” (Constitution of Chile 1980, Article 76)
“[Judges] will have six year terms, at the end of which, they can only be deprived of their positions in cases in accordance with the proceedings established by law.” (Constitution of Mexico 1917, Article 97)

For a look at modern executive power, consider modern bureaucratic systems.

“[Ministers of the State] can exercise guidance, coordination and supervision of the agencies and entities of the federal administration in the area of his authority and to countersign acts and decrees signed by the President of the Republic” (Constitution of Brazil of 1988, Article 87)
“[The president’s] authority extends to all that has for its objective the preservation of the internal public order and the external security of the Republic, in accordance with the Constitution and the laws.” (Constitution of Chile 1980, Article 24)
“According to the law, the Executive Branch of the Federal Government shall have power to establish the public and popular participation procedures within the national system of democratic planning as well as the guidelines leading the design, undertaking, control and evaluation of the plan itself and the programs mentioned before” (Constitution of Mexico 1917, Article 26)

As a contrast, consider the language of the United States’ Constitution, which notably has not been rewritten or credibly disputed since inception. Its discussion of its Judiciary and Bureaucracy contrasts sharply with those of Latin America, which could suggest some reasons why its written law has been preserved while Latin America’s has not.

US Constitution, on Judiciary:

“--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State.” (United States Constitution, Article 3)

US Constitution, on Bureaucracy:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States… He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties …The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” (United States Constitution, Article 2)

The Leyes de Indias, with its foundational yet imprecise legal directives, casts a long shadow over the evolution of Latin American legal systems. The judiciary, described as a body ensuring "the security and calm of all states" (Leyes de Indias, Book 1, Title 10, Law 2), is emblematic of the broad strokes used in defining judicial authority. This lack of specificity is mirrored in the Ordenações Filipinas, where the attorney general's role to promote justice in "all things that relate to justice" (Book 1, Title 15) similarly avoids concrete definitions, setting a precedent for the ambiguous legal language that would persist into post-colonial constitutions.

The bureaucracy under the Leyes de Indias is instructed to provide "that which is convenient to the public and city governments" (Book 2, Title 16, Law 10), a phrase that is echoed in the Ordenações Filipinas' directive for secular assistance "in those cases that proceed ordinarily that are not suitable to process through [religious] censures" (Book 2, Title 8). This vagueness in delineating bureaucratic responsibilities is a thread that continues into the post-independence era.

The Constitution of Brazil from 1824 (Article 151) reflects this historical ambiguity, granting the judiciary power to determine cases "in the mode which the [law] determines," a phrase that could be directly lifted from its colonial predecessors. Chile's 1833 Constitution (Article 81) allows for the removal of employees for "ineptitude or some other reason," a clause that perpetuates the discretionary power seen in the Leyes de Indias. Mexico's 1824 Constitution (Article 137) continues the trend, with the Supreme Court's role in resolving disputes "recognized by the supreme government or its agencies" echoing the earlier colonial codes' lack of clear judicial independence.

Fast forward to the modern constitutions, and the legacy of these ambiguities remains. Brazil's 1988 Constitution (Article 96) and Chile's 1980 Constitution (Article 76) both offer descriptions of judicial power that are open to interpretation, failing to break from the tradition of vague legal language. Mexico's 1917 Constitution (Article 97) provides for the removal of judges "in accordance with the proceedings established by law," a clause that, while seemingly precise, is susceptible to the same variable interpretation as the laws of its colonial and post-colonial forebears.

The Constitution of Chile in 1980 (Article 24) speaks to the president's authority over "the preservation of the internal public order and the external security of the Republic, in accordance with the Constitution and the laws," a statement that parallels the Leyes de Indias' and the Ordenações Filipinas' broad mandates for executive power. This continuity of language suggests a sustained pattern of legal indistinctness that has historically complicated the enforcement of law.

In contrast, the United States Constitution provides a starkly different model, with Article 3 and Article 2 offering clear delineations of judicial and executive powers, respectively. This precision in language and delegation of authority stands in marked contrast to the Latin American constitutions, which have inherited and perpetuated the colonial legacy of ambiguity.

It is now apparent how the current judicial and bureaucratic shortcomings in Latin America originated and what they entail. The imprecise rules and norms established by colonial law led to indistinct, unenforceable judicial powers, hindering the judiciary's potential for impactful reform. Following independence, the newer constitutions continued this trend, displaying similar vagueness by allocating judicial authority to vaguely specified entities with expansive adjectives and mandates. Thus, it is clear that the legal system in Latin America is marred by an ineffectively formulated judicial code, resulting in a judiciary without real power, a legacy inherited from its legal progenitors.

Likewise, contemporary Latin America has adopted a derivative secular bureaucratic system, characterized by a failure to clearly define and assign specific responsibilities. This situation potentially enables those in executive roles to evade their obligations, as they are not held to explicit standards of accountability. The problem is intensified by the use of broad and generalized legal language, which grants bureaucrats the leeway to choose actions that suit their convenience, bypassing the need to adhere to a structured system of accountability or a stringent legal framework. Consequently, this lack of enforceable responsibility in the bureaucratic system contributes to the significant issue of corruption prevalent in the region today.

In tracing the language of legal authority from the Leyes de Indias and Ordenações Filipinas to the post-colonial and modern constitutions of Brazil, Mexico, and Chile, a clear pattern emerges. Each subsequent legal text carries forward the imprecision of its predecessors, maintaining a tradition of vague legal language that has contributed to the challenges of establishing a strong judiciary and a clearly defined bureaucracy in Latin America. This textual analysis reveals a lineage of legal ambiguity that underscores the enduring struggle for clarity and specificity in the region's legal frameworks, and highlights the root cause of many political disruptions that Latin America has faced since independence. Until the region can commit to a philosophical change in the description of their enforcement mechanisms, they will continue to treat the symptoms of their own ambiguity.