The Mexican Legal System
The following excerpt is the Introduction to The Mexican Legal System, 2d ed. (2000), by Francisco A. Avalos
Today's legal system of Mexico is the result of the dynamics of many unique social, racial, political, religious, and economic historical factors that gave birth to the Mexican nation and that have propelled it to the present. An exhaustive study of such a complex social institution is far beyond the scope of this work. This work, as the title implies, is a guide to the legal system of Mexico. It is meant to serve as the point of departure for the study of the legal system of Mexico and not as the final point for such a study. The guide is arranged by legal topic and points to primary and secondary sources. Primary and secondary English language sources were sought out especially for inclusion in this guide.
The Mexican legal system has historical roots that go back to 16th century Spanish law and to Pre-Colombian indigenous law.1 Spain ruled Mexico for over 300 years and consequently left its mark on the legal system of Mexico. The link to Pre-Colombian indigenous law is traced through the Aztec Empire which was the dominant political power in Mexico at the time of the arrival of the Spaniards. The Spanish conquistadores found an advanced indigenous legal system in place when they conquered the Aztec Empire.2 The Spanish Crown did not do away completely with the indigenous legal system. Instead the Crown kept the indigenous laws and legal institutions that did not go directly against established Spanish customs or against Church doctrine.3 The Spanish Crown also introduced its own laws and legal institutions to replace and/or supplement what was discarded, and the Crown passed laws and created legal institutions that were intended for Colonial Mexico, legislation that did not exist in Spain.4
For the next three hundred years "Spanish law was the dominant feature in the Mexican legal" system.5 Spanish law was most dominant in the area of private law; in matters of commerce, property, family inheritance, and obligations, Spanish law was used almost exclusively.6 In the area of public law, indigenous law and the law that was passed exclusively for Colonial Mexico "was very comprehensive and it was the major source of the law for Colonial Mexico."7 There were several attempts made to place together in a single code all of the laws pertaining to Colonial Mexico. The results of these efforts were the: "Cedula de Puga (1556, Decrees and Orders of Puga)," "Nueva Recopilacion (1567, New Compilation)," "Codigo Ovandino (1571, Ovandino Code)," "Recopilacion de Leyes de las Indias (1680, Compilation of the Laws of the Indies)," and "Novisima Recopilacion (1805, Newest Compilation)."8 Another important compilation of laws of the period was the "Ordenanzas de Bilboa (1737, Statutes of Bilboa)." This code concerned private law matters and "became the commercial code and was used in Mexico even after Independence."9
The movement towards Mexican Independence started in 1810.10 In 1814 the Constitution of Apatzingan was issued. Although this constitution never came into effect, many "ideas it expressed served as a model for future changes."11 The Apatzingan Constitution incorporated secular natural law and secular positive law which were the product of the revolutions that took place in the Western World in the 18th and 19th centuries beginning with the American Revolution. The crux of secular natural law and secular positive law is that all individuals are created equal with natural rights to property, to liberty, and to life. It is the responsibility of the government, which should be divided into separate, independent powers, to recognize and secure these rights for the individual.12 The American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen are prime examples of the new 18th and 19th century political philosophy. Nationalistic fervor also formed part of the new political philosophy.
Mexico achieved independence in 1821 and adopted its first constitution in 1824.13 The 1824 Constitution provided for a Federal Republic consisting of 19 states, four territories, and a Federal District. The 1824 Constitution also provided for: recognition of self-determination, division of power into the executive, the legislative, and the judiciary, the equality of all citizens before the law, the principle of innocent until proven guilty, freedom of expression and of the press, the protection of private property, the abolition of special privileges for the clergy and the military, and agrarian reform.
The 1824 Constitution was never applied strictly because of internal armed conflict between the conservative and liberal elements of the newly independent Mexican nation. In 1857 a new constitution was adopted which was drafted by the liberal elements who had ascended to power.14 The most important contribution of the 1857 Constitution was the writ of "amparo" (see page 10 for an explanation of the writ of "amparo").15 The 1857 Constitution survived a civil war and the French intervention of 1862. It was not until after the triumph of the 1910 Mexican Revolution that the 1857 Constitution was replaced by the current Mexican Constitution of 1917.
The current Mexican Constitution is commonly referred to as the 1917 Constitution. The official name of the 1917 Constitution is the Political Constitution of the United Mexican States (Constitucion Politica de los Estados Unidos Mexicanos). The original name given to the 1917 Constitution was the Political Constitution of the United Mexican States, that Revises the One of February 5 of 1857 (Constitucion Politica de Los Estados Unidos Mexicanos, Que Reforma la del 5 de Febrero de 1857).16 The 1917 Constitution adopted from the 1857 Constitution the chapters on territorial organization, civil liberties, democratic forms, anti-clerical clauses, and anti-monopolies clauses.
Although the 1857 Constitution served as a foundation for the 1917 Constitution, there are major, fundamental differences between them. They differ basically in approach. Both constitutions define and articulate democratic political rights and duties, but the 1917 Constitution goes on to include economic, social, and cultural rights.17 The inclusion of these economic, social, and cultural rights in the 1917 Constitution was original and revolutionary at the time.18 A leading Mexican legal scholar has stated that, "the importance of the Mexican Constitution of 1917 is the systematic establishment of basic rights of economic and social integration."19
Another fundamental difference between the 1857 Constitution and the 1917 Constitution is in the different philosophical approaches to governing the nation that the different constitutions embrace. The 1857 Constitution called for a politically neutral federal government, a federal government that would be passive in relation to economic and social matters, a federal government that respects the status quo.20 The 1917 Constitution, on the other hand, calls for a federal government that has a moral obligation to take an active role in promoting the social, economic, and cultural well-being of the people.21
The Federal Constitution is the most important political document in Mexico. It is the source and origin for all Mexican law. The hierarchy of sources of law in the civil law tradition to which Mexico's legal system belongs are, "constitution, legislation, regulation, and custom."22 The constitution will override all legislation, legislation will override all regulation, and regulation will override all custom.
The 1917 Mexican Constitution calls for a "federal, democratic, representative Republic composed of free and sovereign States."23 All public power is derived from the people.24 The country, whose official name is the United Mexican States (Estados Unidos Mexicanos), consists of 31 states and a Federal District.25 Mexico City, the national capital, is located in the Federal District. There is a centralized federal government and individual state governments.26 The federal government governs the Federal District.27
The Mexican Constitution is based on seven basic principles: a declaration of human rights; national sovereignty; division of powers; the representative system; a federal structure; constitutional remedy and the supremacy of the state over the Church.28 It is seen as an instrument to be used to bring about social change. The government is very active in the national economy and promotes change through ownership, regulations and legislation.29
It is estimated that in 1910 almost 97 percent of the arable land in Mexico was in the hands of no more than 1,000 families, while 2 percent belonged to small land holders, and 1 percent belonged to municipalities.30 Article 27, which consists of over 50 paragraphs, was written with the intent of breaking up land, water, and other natural resource monopolies held by the privileged few.31 The privileged few not only consisted of the 1,000 Mexican Families mentioned previously, but included the Church and foreign interests.
The first paragraph of Article 27 gives the nation original ownership "of the lands and waters within the boundaries of the national territory." Paragraph 1 also gives the nation "the right to transmit title thereof to private persons, thereby constituting private property." Article 27 goes on to grant the nation the power to expropriate private property by indemnification for reasons of public utility and "to ensure a more equitable distribution of public wealth." Paragraph three states that "the Nation shall at all times have the right to impose on private property such limitations as the public interest may demand." Paragraphs 4 and 5 give the nation direct ownership of all subsoil resources.
Property rights of foreign citizens and foreign corporations are covered by Section I of Article 27. In part, Section I states that foreigners must agree to submit themselves to Mexican law, "and bind themselves not to invoke the protection of their government in matters relating thereto" to be able to acquire property and mining concessions. In case of noncompliance by foreign citizens and foreign corporations, their property or mining concessions are forfeited to the nation. Foreign ownership of real property is further limited by the last sentence of Section I. This sentence states that "under no circumstances may foreigners acquire direct ownership of lands or waters within a zone of one hundred kilometers along the frontiers and of fifty kilometers along the shores of the country."
Article 27, Section II contains clauses restricting real property ownership by religious organizations. Religious organizations can not "acquire, hold, or administer real property or mortgages there on; such property held at present either directly or through an intermediary shall revert to the Nation." Not only did all churches become the property of the nation, but the federal government was empowered to "determine which of them may continue to be devoted to their present purposes." Furthermore, all, "Bishopries, rectories, seminaries, asylums and schools, shall at once become the property of the Nation by inherent right." Also "all places of public worship" built in the future would become the property of the state. Section II of Article 27 also restricts the real property that private and public charitable institutions and commercial stock companies may acquire.
Constitutional Article 27 altered "the theory of the inviolability of private property" in the Mexican legal system.32 The "economic interest" of the people and the nation were viewed as paramount when compared against the rights to private property by the framers of the 1917 Constitution. But Paragraph 1 of Article 14 of the 1917 Constitution seems to conflict with Article 27. Paragraph 1 of Article 14 reaffirms the sanctity of private property in the constitution.
Article 123 consists of 31 paragraphs. The article was written with the intent of incorporating "extensive constitutional protections for labor."33 It was also written "as a means of achieving" a just society.34 This article places all labor matters under federal jurisdiction, though some limited authority is delegated to states in creating conciliation and arbitration boards.35
Article 123 covers three different aspects of benefit to workers. The first part concerns workers' rights: an 8-hour workday, a 7-hour work night, special limits in the work of minors and women, maternity leave, mandatory vacation, mandatory days of rest, a safe working place, job security, minimum wage, overtime pay, and comparable pay. The second part of the Article deals with workers' compensation. Workers are entitled to compensation by their employers for injuries, death, or occupational diseases incurred as a result of their employment. There is no requirement to show fault or negligence "and contributory negligence is no defense."36 The recoverable amount, which tends to be very low when compared to our workers' compensation in the United States, is set by law.37 The third part concerns labor management relations. Workers are given the right to organize and bargain collectively. Workers also have the right to strike, with few reservations.38 Workers are entitled to profit sharing, and the percentage of profits workers are entitled to are set by a national committee.39 Finally, workers cannot be fired except for certain causes set out in statutes.40
Another article of the 1917 Constitution that is important is Article 49 which established the organization and division of the powers of the federal government. The federal government is divided into executive, legislative, and judicial branches. Each branch is independent of the other, and "two or more of the powers shall never be united in one single person or corporation."41 The executive is empowered to assume sole control of the government in case of emergencies. The emergencies and procedures for the executive to assume sole control of the government are defined and articulated in Article 29.
Article 80 of the Constitution deals with the executive branch of government. The executive branch is the branch of government in Mexico with the most political power. The office of the presidency is "the most important political and constitutional office" in Mexico.42 The president, elected to a 6-year term with no re-election, has attained a position of supreme power through "long standing practice, statutory, and constitutional provisions, and a well-institutionalized tradition of near absolute political power."43 The constitutional powers of the president include "broad power of appointment and removal, fiscal powers, the power to initiate and veto legislation, and control of the military."44 Articles 81 through 93 of the 1917 Constitution delineate the president's powers and responsibilities.
The legislative branch of the federal government is comprised of the Senate and the Chamber of Deputies. There are 2 senators per state and one deputy for every 250,000 people in a state. Senators are elected by direct popular vote to a 6-year term. Deputies are elected to a 3-year term. Three-fourths of the deputies are elected by direct popular vote, with the remaining one-fourth selected in proportion to the votes received by each political party. Senators and deputies cannot be reelected for an immediately succeeding term.
Regular legislative sessions begin on September 1 and must end by December 31 of each year, although a special session may be called. The special session must be called by the Permanent Committee. The Permanent Committee is composed of 15 deputies and 14 senators. The members of the Permanent Committee are elected by their respective chambers at the end of each regular legislative session.45 During adjournment the Permanent Committee remains to handle housekeeping chores.
The Mexican Constitution empowers both the executive and the legislative branches to initiate legislation, but only the Chamber of Deputies can initiate bills concerning loans, taxes, imposts, and the recruitment of troops. However, in practice the executive branch initiates almost all legislation and certainly all legislation of any consequence.46 Each new bill must pass both Chambers by a majority vote. The president has the power of the veto, which the legislative branch can override by a two-thirds vote in each Chamber. Once a piece of legislation is passed by the Senate and Chamber of Deputies, the bill is sent to the president for promulgation of the bill. Promulgation consists of the president "recognizing the authenticity and regularity of the legislation."47 The president then has the new law published in the official government newspaper (Diario de la Federacion). The president also issues the "reglamento" for the new law-the rules and regulations that give effect to the more general provisions of the new law. The "reglamento" has the same force as the new law to which it refers.48
The federal judiciary in Mexico is governed by Articles 94 through 107 of the Constitution and the Organic Law of the Federal Judiciary (Ley Organica del Poder Judicial de la Federacion). The Mexican Federal Judiciary is based on a three tier system similar to our own federal judiciary.49 There is a Supreme Court (Suprema Corte de Justicia de la Nacion) which has final appellate jurisdiction over all state and federal courts. There are circuit courts (Tribunales de Circuito) which are the federal appellate courts. The circuit courts are divided into single judge courts (Tribunales Unitarios de Circuito) and collegiate courts (Tribunales Colegiados de Circuito). There are also district courts (Juzgados de Distrito) and jury courts (Jurados Populares Federales) which are the federal courts of first instance.50
The Supreme Court is composed of 11 Justices and 1 Chief Justice. The President nominates the candidates for the Supreme Court and the Senate can approve the nomination with a 2/3 majority. If the Senate does not act on the nominations within 30 days the approval becomes automatic. There are no elected judges in Mexico. Supreme Court justices are appointed with life tenure. The president also has the power to remove a Supreme Court justice with the approval of the Senate and the Chamber of Deputies.51 The Supreme Court meets in plenary session for cases involving jurisdictional issues, constitutional issues, and agrarian issues.52 The Supreme Court also divides and meets in panels (salas). There are four panels: criminal panel, civil panel, administrative panel, and labor panel.
Circuit judges and district judges are appointed by the Supreme Court to 4-year terms.53 Circuit judges and district judges may be reappointed or promoted to a higher position at the end of the 4-year term, but they may only be dismissed for bad conduct.54
The Constitution (Article 94) gives federal courts jurisdiction over: controversies that arise out of laws or acts of state or federal authorities that violate individual guaranties, controversies between states or a state and federal authorities, all matters involving federal laws and treaties, all cases in which the federal government is a party, all matters involving maritime law, and all cases that involve members of the Diplomatic and Consular Corps.55 The federal judiciary, vis-a-vis state judiciaries, "have a much larger share of the judicial power," in Mexico.56
One of the most important type of cases the federal courts hear in Mexico are "amparo" suits (juicio de amparo).57 The "amparo" suit is an original Mexican institution with no exact equivalent in the common law tradition.58 The word "amparo" literally means favor, aid, protection, or shelter. Legally the word encompasses elements of several legal actions of the common law tradition: writ of habeas corpus, injunction, error, mandamus, and certiorari.59 There are five types of "amparo" suits: 1) "amparo" as a defense of individual rights such as life, liberty, and personal dignity; 2) "amparo" against laws (defending the individual against un-constitutional laws); 3) "amparo" in judicial matters (examine the legality of judicial decisions); 4) administrative "amparo" (providing jurisdiction against administrative enactments affecting the individual); 5) "amparo" in agrarian matters (protecting the communal ejidal rights of the peasants).60 The "amparo" suit may be either direct, initiated in the Supreme Court or collegiate circuit courts, or indirect, initiated in a district court and brought on appeal to the previously mentioned courts.
There are several federal judicial bodies in Mexico that are not part of the regular federal court structure. The most important are the Tax Court (Tribunal Fiscal de la Federacion) Labor Courts (Juntas de Conciliacion y Arbitraje) and Military courts (Tribunales Militares). The Tax Court is an administrative court "with jurisdiction over controversies arising in fiscal matters between an individual and the government."61 The Tax Court's responsibilities and structure are covered by the Fiscal Code (Codigo Fiscal de la Federacion) and the Organic Law of the Tax Court (Ley Organica del Tribunal Fiscal de la Federacion). The Labor Courts have jurisdiction over claims by workers that allege that their rights under the Federal Labor Code have been violated, disputes over collective bargaining, and strike-related matters.62 Labor courts' responsibilities and structure are covered by the Federal Labor Law (Ley Federal del Trabajo). The Military Courts deal with military matters.63 The Military Courts' responsibilities and structure are covered by the Organic Law of the Military Courts (Ley Organica de Los Tribunales Militares).
Mexico's legal system stems from the civil law tradition. This occurred as a result of Mexico's long association with Spain. It is important to be aware of some of the most important concepts of the civil law tradition in order to formulate research strategies in conducting research into Mexican law. The civil law tradition is the oldest and most widely used legal tradition in the world today.64 Its foundations were developed in the Italian universities of the Renaissance when Roman law was rediscovered. Modern-day civil law is based on Roman Law (Corpus Juris Civilis), canon Law (Roman Catholic Church), medieval common commercial law, secular natural law, secular positive law, and to a lesser degree custom law. The civil law tradition divides the law into two major areas of law: private law and public law. Private law concerns the legal relationships between individuals. Public law concerns the legal relationships between individuals and the state.
The most important contributions of Roman Law, canon law, and medieval commercial law to the civil law tradition are found in the private law area. Roman law influenced "the law of persons, the family, inheritance, property, torts, unjust enrichment, and contracts."65 The influence of canon law is found mainly "in the area of family law and succession (both parts of the Roman Civil Law), criminal law and the law of procedures."66 The third historical component, medieval common commercial law, is most evident in the commercial codes of the modern civil law tradition.67 The most important contributions of secular natural law and secular positive law are in the public law area. They are most evident in constitutional law, administrative law, and the judiciary.68 The main tenets of the civil law tradition concern areas dealing with persons, things, and obligations, and their relationship.69 These legal tenets are found and expressed in the most important codes of the modern civil law states: the civil code, the commercial code, the criminal code, the code of civil procedures, and the code of criminal procedures.70
Codes in the civil law tradition have been written through the years on the assumption that using a rational scholarly process, rules and laws can be formulated to apply to most all situations that may arise. As a result, codes tend to be very detailed and vast in size. The Mexican codes, like most Latin American codes, borrowed greatly from the European codes of the late 19th century.71 Individual articles in the codes are not regarded as narrow rules. If no applicable article is found for a given situation, several articles may be viewed in combination, and a general rule may be deduced from the articles to reach a solution. Ideally, the code article or articles that are relevant are found and applied in an almost mechanical fashion to the given situation with no need for any legal interpretation. Of course, in practice in our modern complex world all situations of possible legal conflict cannot be foreseen and provided for. Many situations occur where legal interpretation is required. In these situations the fact that the civil law tradition had its origins in the universities and not in the courts is significant. The civil law tradition was developed by legal scholars and not by judges and lawyers, as is the case with the common law tradition. Thus, the "authorities" of the civil law tradition were, and continue to be, legal scholars and not judges and lawyers.
The legal scholars of the civil law tradition produce legal treaties that are referred to as doctrine ("doctrina" in Mexico). Civil law tradition judges, lawyers, and law students will refer to the doctrine of the leading legal scholars as common law tradition judges, lawyers, and law students will refer to case law. According to John H. Merryman, "the law in a civil jurisdiction is what the scholars say it is."72
The legal principle of "stare decisis," of the common law tradition is not recognized in the civil law tradition. There are several reasons for the rejection of the legal principle of "stare decisis" by the civil law tradition. One reason is the fact that the civil law tradition was developed by legal scholars in the universities and not by judges in the courtroom. Another reason is the post French Revolutionary influence on the civil law tradition. The post French Revolution legislature sought to reform the judiciary to prevent previous abuses.73 The role of the judge was reduced "to that of a minor bureaucrat who had no power to go beyond the letter of the law."74 Judicial review of legislation was not within the legal powers of judges.75 No one but the elected legislature had the power to create law.
Although the principle of "stare decisis" is not recognized in the civil law tradition, the Mexican judiciary does create case law to some extent.76 The Supreme Court and federal collegiate courts may establish formally binding precedent called "jurisprudencia."77 "Jurisprudencia" is established by having five consecutive and consistent decisions on a point of law. "Jurisprudencia" is binding on the court that established it and on all lower federal and state courts. Many of the legal treatises listed in the guide have the word "jurisprudencia" in their title. It is important to remember that in these instances "jurisprudencia" means case law and not the general study of law.
The starting point for nearly all Mexican legal research is a code. But, before going into the Mexican codes, it is important to mention some introductory material on the Mexican legal system. The most complete introduction is An Introduction to the Mexican Legal System by James E. Herget and Jorge Camil (1978). A reprint of this work appears in volume I of Modern Legal Systems Cyclopedia, edited by Kenneth Robert Redden (1984-). Compendium of the Laws of Mexico by Joseph Wheles (1938), is dated but is still useful to someone unfamiliar with the Mexican legal system.
Although they are not true introductions to the legal system of Mexico, the following sources also should be considered: An Introduction to the History of Mexican Law by Guillermo Floris Margadant (1983); Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World by Thomas H. Reynolds and Arturo A. Flores (1989-); A Revised Guide to the Law and Legal Literature of Mexico by Helen L. Clagett and David M. Valderrama (1973); Guide to the Law and Legal Literature of Mexican States (1979) by Helen L. Clagett a reprint of a 1947 edition. As mentioned before, the starting point for nearly all Mexican legal research is a code. The first step in the process is to determine which code is the relevant one. Forty-one subject headings and an index have been provided to facilitate this process. The subject headings are based on broad general legal terms. For example, under "Domestic Relations" all laws associated with family law are included: marriage laws, divorce laws, adoption laws, legal guardianship laws, emancipation of minors laws, paternity and filiation laws, homestead laws, and civil registry laws.
Once the relevant code is determined, the specific code article or articles that apply to the specific situation must be located. Keyword searching, as used in most legal research, is not applicable in Mexican legal research. Mexican codes do not have indexes; instead codes provide a short, general table of contents. The table of contents can be located either at the front of the code or at the back of the code. In Mexican legal research, the search is done by thinking in broad, general legal concepts and then working down to the specific. As an example, the search in the Mexican civil code for the divorce articles would not start with "divorce" but with "of persons" since divorce deals with a relationship of persons. Under the "of Persons" heading one would find divorce, marriage, adoptions, birth registration, death registration, and other matters relating to a person as a legal entity. A person becomes a legal entity at birth and loses this capacity at death.
Codes in Mexico are issued by private publishers. Two Mexican publishers dominate the code publishing trade. They are "Ediciones Andrade" and "Editorial Porrua." "Ediciones Andrade" publishes the majority of the codes in a loose-leaf format, with regular updating. The other codes are published in a paperback format. Besides the loose-leaf updating service, "Ediciones Andrade" offers other good features. One feature is the practice of not only including the specific code but of including all of the legislation and regulations relevant to the specific code. A third good feature of "Ediciones Andrade" codes is that they are annotated.
"Editorial Porrua" publishes the codes in a paperback format. They issue new editions continuously, and these editions are more like reprints rather than new editions. "Editorial Porrua" also adds relevant legislation and regulations to the codes as "Ediciones Andrade" does, but not to the extent that "Ediciones Andrade" does. The good features of "Editorial Porrua" are that the codes are extremely inexpensive (about $10.50), and there are no loose-leaf filing requirements. The codes can be replaced on a yearly basis which assures that the material is current. "Editorial Porrua" codes are not annotated. "Editorial Porrua" publishes two series which include most all codes and major regulations. The first series, "Leyes y Codigos de Mexico," features federal legislation. The second series, "Codigos de Los Estados de la Republica Mexicana," features state legislation from the various Mexican states. A third series, "Biblioteca Juridica Porrua," is comprised of doctrinal treatises by the most prominent legal scholars of Mexico.
Several of the major codes of Mexico in the civil and commercial area have been translated into English. Michael Wallace Gordon has translated the Mexican Civil Code. The Foreign Tax Association has translated the Mexican Commercial Code, the Social Security Code, the Tax Code, the Labor Code, and the regulations concerning foreign investment in Mexico. The Foreign Tax Association's translations of the codes are in loose-leaf format and thus always up-to-date. Matthew Bender's 3-volume Doing Business in Mexico also provides English translations of business oriented legislation and regulations in a loose-leaf format. The other major codes of the Mexican legal system, the Criminal Code, the Civil Procedures Code, and the Criminal Procedures Code have not been translated into English.
The second step in Mexican legal research involves finding the doctrine that applies to the situation under study. Most of the doctrine is organized by code and articles chronologically, which makes for easy access. As is the case with codes, the doctrinal treatises do not have indexes with few exceptions, but provide only a short, general table of contents. "Editorial Porrua" publishes the works of the more renowned Mexican legal scholars in the previously mentioned series, "Biblioteca Juridica Porrua." The "Instituto de Investigaciones Juridicas" (Institute for Legal Studies) of the Law School at the National Autonomous University of Mexico is another source of doctrinal treatises. The "Instituto de Investigaciones Juridicas" in conjunction with "Editorial Porrua" also publish excellent doctrinal treatises. Several sources of doctrine are listed under each of the subject headings in the body of this work.
The Index to Foreign Legal Periodicals indexes three major Mexican law reviews which are an excellent source for doctrine. The Mexican Law Reviews are "Revista de la Faculta de Derecho de Mexico," "Boletin Mexicano de Derecho Comparado," and "Revista de Investigaciones Juridicas." These law reviews may be purchased directly from the Law School of the National Autonomous University of Mexico, or through the Faxon Company.
All of the doctrine sources previously mentioned are in Spanish. English-language secondary material, not doctrine, can be found by using INFOTRACT, Current Law Index, and Index to Legal Periodicals. Several sources for secondary material in English are listed under each of the subject headings used in this work, as well as Spanish-language doctrinal sources.
The third step in Mexican legal research is the most difficult step. This step involves searching for Supreme Court "jurisprudencia" and "tesis sobresalientes." "Tesis sobresalientes" are case decisions of note that have persuasive value, but are not binding on lower courts as is the case with "jurisprudencia." Decisions of the Supreme Court are officially published in the "Semanario Judicial de la Federacion" (Judicial Weekly of the Federation).78 The "Semanario" is broken down into series called "Epocas." There have been seven "Epocas": First "Epoca," 1871-1874, Second "Epoca," 1881-1889, Third "Epoca," 1890-1897, Fourth "Epoca," 1898-1910, Fifth "Epoca," 1918-1957, Sixth "Epoca," 1957-1968, and Seventh "Epoca," 1969-.
The first four "Epocas" (1871-1910) are called "jurisprudencia historica" (historical jurisprudence). The "jurisprudencia historica" has no binding force and is used only for historical legal studies.79 The reason that "jurispudencia historica" has no binding force is that the current Mexican Constitution was not adopted until 1917, and anything not based on the 1917 Constitution has no legal force. The "jurisprudencia applicable" (applicable jurisprudence) starts with the fifth "Epoca" in 1918.80
Access to the Supreme Court decisions in the "Semanario" is extremely difficult and time consuming. The reason for the difficulty in using the "Semanario" is the constantly changing manner of indexing and terms used for topic access. They not only change from "Epoca" to "Epoca," but even from volume to volume from within the same "Epoca." The changes are too many to allow for a discussion in this introduction. Ezequiel Guerrero Lara's work, cited in footnote 77, is the one source on how to use the "Semanario."
The difficulty of accessing Supreme Court decisions in the "Semanario" has led to private publishers publishing Supreme Court decisions in more accessible formats. "Mayo Ediciones" offers the better and most complete reporting service. "Mayo Ediciones" published "Jurisprudencia y Tesis Sobresalientes" (Jurisprudence and Cases of Note) which brings together case decisions that are binding and case decisions that have persuasive value. The decisions are arranged by Supreme Court panel (criminal, civil, administrative, labor, and plenary session). Within each group the decisions are arranged by topic. This title by itself will suffice in most cases for all Supreme Court decisions' research.
"Mayo Ediciones" also publishes "Jurisprudencia; Poder Judicial de la Federacion" (Jurisprudence; Judicial Power of the Federation) which does not include cases of note, only "jurisprudencia." Another publication of "Mayo Ediciones" is "Informe" (Report) which is the annual report of the Supreme Court. The most important cases of the year are reported in the "Informe." A third publication of "Mayo Ediciones" is "Compilacion Mayo del Semanario Judicial de la Federacion" (Mayo Compilation of the Judicial Weekly of the Federation). The compilation arranges the decisions by Supreme Court panel, and by topic within each panel.
Another important source for "jurisprudencia" are treatises that bring together "jurisprudencia" relating to the Constitution and the various legal codes. I have listed this type of treatise under the Subject Heading to which it relates. Under the subject heading of "Miscellaneous," subheading "Jurisprudence and the Supreme Court" are listed other general sources for "jurisprudencia." One final word on "jurisprudencia;" published case decisions are condensed to a point that most common law researchers would consider extreme. Seldom is there a statement of facts included in the reported decisions. What tends to be published is the "considerando" (conclusion of law) or the thesis of the case with only those facts of the case needed to make the published ruling comprehensible.
The three steps in Mexican legal research are: finding the relevant article or articles in the appropriate code, finding the relevant "doctrina," and finding the relevant "jurisprudencia." The most important step is the first. The research process could stop at this step if the researcher felt confident enough to assume that the correct article or articles had been found and their correct interpretation achieved. However, my own experience is that the majority of people who work with Mexican law do not stop after the first step; rather they go on to step two. Finding the appropriate "doctrina" is really essential to good Mexican legal research. Step three seems to vary in importance according to the researcher's legal background. Mexican-trained lawyers do not consider step three essential; American-trained lawyers do believe that step three is essential. Mexican lawyers are trained in the civil law tradition, and American lawyers are trained in the common law tradition. But also important is the fact that "jurisprudencia" research is so difficult because of the lack of finding tools. More and more finding tools are being published in Mexico to provide easier access to "jurisprudencia." The importance of step three will thus increase as more and more finding tools are published in Mexico.
1. See generally Guillermo Floris Margadant, An Introduction to the History of Mexican Law (Dobbs Ferry, N.Y.: Oceania Publications, 1983); Also Toribio Esquival Obregon, Apuntes para la Historia del Derencho en Mexico (Memorandum on the Law in Mexico), 2nd ed. (Mexico: Editorial Porrua, 1984).
2. See generally Fernando Flores Garcia, "La Administracion de Justicia en los Pueblos Aborigenes de Anahuac" (The Administration of Justice in the Aborigen Towns of Anahuac), Revista de la Facultad de Derencio de Mexico 15 (Enero-Marzo 1965):81; also Lucien Biart, The Aztecs: Their History, Manners and Customs (Chicago: A.C. McClure and Company, 1887); also Lucio Mendieta y Nunez, Derencho Precolonial (Precolombian Law), 5th ed. (Mexico: Editorial Porrua, 1985).
3. Jose Maria Ots Capdequi, Manual de Historia del Derecho Espanol en las Indians: Y del Derecho Priamente Indiano (Handbook of the History of the Laws of Spain in the Indies: And of the Laws Exclusively of the Indies) (Buenos Aires: Editorial Losada, 1947), 233.
4. See generally Francisco Avalos, "The Legal Personality of the Colonial Period of Mexico," Law Library Journal 83 (Spring 1991): 393-400.
5. James E. Herget and Jorge Camil, An Introduction to the Mexican Legal System (Buffalo, N.Y.: William S. Hein, 1978), 6.
6. Ots Capdequi, supra note 3, 78.
7. Avalos, supra note 4, 396.80
8. Ibid., 399.
9. Herget, supra note 5, 4.
10. See generally, supra note 1; also Octavio A. Hernandez and Miguel Angel Porrua, eds., Derecho del Pueblo Mexicano: Mexico a Traves de Sus Constituciones (Rights of the Mexican Nation: Mexico through its Constitutions), 3rd ed. (Mexico: Camara de Diputados, 1985).
11. Herget, supra note5, 7.
12. John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2nd ed. (Stanford, California: Stanford University Press, 1985), 15.
13. Margadant, supra note 1, 189.
14. Ibid., 223.
15. See generally Richard D. Baker, Judicial Review in Mexico: A Study of the Amparo Suit (Austin: University of Texas Press, 1971).
16. Enciclopedia de Mexico (Encyclopedia of Mexico), 4th ed., s.v. "Constituciones" (constitutions).
17. Constitution of the United Mexican States (1917), Title 1, Chapter 1, Section 1, Paragraph A.
18. Miguel de la Madrid Hurtado, Estudios de Derencho Constitucional (Constitutional Law Studies) 3rd ed. (Mexico: Editorial Porrua, 1986), 104.
19. Alberto Trueba Urbina, The Mexican Constitution of 1917 Is Reflected in the Peace Treaty of Versailles of 1919 (New York: s.n., 1974), 104.
20. Madrid Hurtado de la, supra note 18, 113.
21. Ibid., 113.
22. Merryman, supra note 12, 24.
23. Constitution of the United Mexican States (1917), Title 2, Chapter 1, Article 40.
24. Ibid., Chapter 1, Article 39.
25. Ibid., Chapter 2, Article 43.
26. Ibid., Chapter 1, Article 41.
27. Ibid., Chapter 2, Article 43.
28. E.V. Niemeyer, Revolution at Queretaro: The Mexican Constitution Convention of 1916-1917 (Austin: University of Texas Press, 1974) 228.
29. Madrid Hurtado de la, supra note 18, 114.
30. Niemeyer, supra note 28, 134.
31. Ibid., 234.
32. Ann M. Bartow, "The Rights of Workers in Mexico," Comparative Labor Law Journal 11 (Winter 1990): 182.
33. Madrid Hurtado de la, supra note 18, 189.
34. Herget, supra note 5, 31.
35. Ibid., 31.
36. Constitution of the United Mexican States (1917), Title 6, Article 123, Section 14.
37. Ibid., Section 18.
38. Ibid., Section 9, Subsection A through F.
39. Herget, supra note 5, 32.
40. Constitution of the United Mexican States (1917), Title 3, Chapter 1, Article 49, Paragraph 2.
41. Vincent L. Padgett, The Mexican Political System, 2nd ed. (Boston: Houghton Mifflin Company, 1976), 192.
42. Herget, supra note 5, 20.
43. Padgett, supra note 41, 198.
44. Constitution of the United Mexican States (1917), Title 3, Chapter 2, Section 4, Article 78.
45. Herget, supra note 5, 19.
46. Padgett, supra note 41, 200.
47. Ibid., 200.
48. Constitution of the United Mexican States (1917), Title 3, Chapter 4, Article 94.
49. Ley Organica del Poder Judicial de la Federacion (Organic Law of the Federal Judiciary), (1981).
50. Constitution of the United Mexican States (1917), Title 3, Chapter 4, Article 98.
51. Paul Berstein, "El Derecho y el Hecho: Law and Reality in the Mexican Justice System," Chicano Law Review 8 (1985): 55.
52. Constitution of the United Mexican States (1917), Title 3, Chapter 4, Article 97, Paragraph 1.
54. Ibid., Articles 103, 104, 105, 106, 107.
55. Herget, supra note 5, 72.
56. Constitution of the United Mexican States (1917), Title 3, Chapter 4, Article 107. Also Ley de Amparo ("Amparo" Law) (1935).
57. See generally Baker, supra note 15.
58. Helen L. Clagett and David M. Valderrama, A Revised Guide to the Law and Legal Literature of Mexico (Washington D.C.: Library of Congress, 1973), 38.
59. Herget, supra note 5, 28.
60. Clagett, supra note 60, 221.
61. Frederic Meyers, Mexican Industrial Relations from the Perspective of the Labor Courts (Los Angeles: Institute of Industrial Relations, 1979), 30.
62. See generally Diccionario Judico Mexicano (Mexican Legal Dictionary), 2nd ed., s.v. "Tribunales Militares" (Military Courts).
63. See generally Merryman, supra note 12.
64. Ibid., 6.
65. Ibid., 11.
66. Ibid., 13.
67. Ibid., 14.
68. Ibid., 6.
70. Thomas H. Reynolds and Arturo A. Flores, Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World (Littleton, Colorado: Fred B. Rothman & Company, 1989), Mexico 1.
71. Merryman, supra note 12, 60.
72. Ibid., 16.
73. Berstein, supra note 53, 45.
74. Merryman, supra note 12, 18.
75. Constitution of the United Mexican States (1917), Title 3, Chapter 4, Article 107, Section 2 and 13. Also Ley de Amparo ("Amparo" Law) (1935).
76. See generally Victor Vilaplana, "Mexican Law for Norteamericanos," Law Library Journal 68 (November 1975): 396-399.
77. See generally Ezequiel Guerrero Lara, Manual para el Manejo del Semanario Judicial de la Federacion (Manual for the Use of the Judicial Weekly of the Federation) (Mexico: Instituto de Investigaciones Juridicas, 1982).
78. Guerrero Lara, supra note 77, 13.
79. Ibid., 13.
80. Ibid., 15.