Cecily Zamora
Mexico's legal system is based on civil law, which is derived mainly from Roman law as set forth in the compilation of codes and statutes called Corpus Juris Civilis and later refined in the Napoleonic Code. This is in contrast to the United States, which operates under a common law system based on case law and statutory law from England and the early American colonies. In Mexico, the civil law tradition was developed by legal scholars, and the legal treatises they produce are called doctrine (doctrina in Spanish). These doctrines are used in a similar way to case law in the common law tradition, but they are not legally binding. While Mexico does not have common law in the legal sense, it does have a version of common-law marriage called concubinato, which refers to two people who cohabit as a couple without being married.
| Characteristics | Values |
|---|---|
| Type of Law | Civil Law |
| Basis of Law | Constitution of Mexico |
| Hierarchy of Sources of Law | Constitution, Legislation, Regulations, Custom |
| Alternative Hierarchy of Sources of Law | Constitution, Treaties, Statutes, Codes, Doctrine, Custom, General Principles of Law |
| Federal Legislation | Civil Code, Commercial Code, Criminal Code, Civil Procedures Code, Criminal Procedures Code |
| Court System | Ordinary Jurisdiction (Civil, Commercial, Criminal) and Administrative Courts or Courts of "Special Jurisdiction" |
| Court Decisions | Limited to a specific area |
| Legal Scholars | Produce legal treatises called "doctrine" (doctrina in Mexico) |
| "Doctrine" | Referred to by civil law tradition judges, lawyers, and law students |
| "Jurisprudencia" | Established when the Supreme Court and federal collegiate courts issue five consecutive and consistent decisions on a point of law |
| Common Law Marriage | "Concubinato" or "Concubinage" |
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What You'll Learn
- Mexico's legal system is based on civil law, not common law
- The civil law tradition was developed by legal scholars, not judges or lawyers
- The legal principle of stare decisis is not recognised in Mexico
- Mexico has its own version of common law marriage, called concubinato
- The civil code is the most important embodiment of law, based on Roman law
Mexico's legal system is based on civil law, not common law
Mexico's legal system is based on civil law, which is fundamentally different from the common law system of the United States. While the US legal system is based on case law and statutory law from England and its early American colonies, Mexico's system is derived mainly from Roman law, as set forth in the compilation of codes and statutes known as Corpus Juris Civilis and later refined in the Napoleonic Code.
In Mexico, lawyers study the applicable legal provisions and specific court decisions, whereas in the US, lawyers must supplement what a statute says by citing cases that interpret the statute in a particular way. The civil law tradition in Mexico was developed by legal scholars, whereas the common law tradition was developed by judges and lawyers. The legal scholars of the civil law tradition produce legal treatises called "doctrine" ("doctrina" in Mexico), which are referred to by judges, lawyers, and law students in the same way that common law tradition practitioners refer to case law. These doctrines do not carry the force of law and are not legally binding.
The civil law tradition treats the divisions of law in normative terms, with two major areas: private law, concerning relationships between individuals, and public law, concerning relationships between individuals and the government. Mexico's federal legislation is codified in five major codes: the civil code, the commercial code, the criminal code, the civil procedures code, and the criminal procedures code. The civil code is the most important embodiment of law, based on Roman law.
While the term "concubinato" in Mexico may sound like the English word "concubine", it is Mexico's version of common-law marriage. It simply refers to two people who cohabit as a couple without being married and meet certain criteria, such as both partners being adults and neither being legally married to someone else.
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The civil law tradition was developed by legal scholars, not judges or lawyers
Mexico's legal system is based on civil law, which is derived mainly from Roman law as set forth in the compilation of codes and statutes called Corpus Juris Civilis and later refined in the Napoleonic Code. It is a civil law country, unlike the United States, which is a common law country.
The civil law tradition tends to treat the divisions of law in normative terms. There are two major areas of law: private law, concerning the relationships between individuals, and public law, concerning the relationships between individuals and the government. The civil code is the most important embodiment of law, based on Roman law.
In Mexico, lawyers study the applicable legal provisions and court decisions limited to a very specific area. The court system distinguishes between courts of "ordinary jurisdiction" (civil, commercial, and criminal jurisdiction) and administrative courts or courts of "special jurisdiction."
Mexico does have a version of common law marriage, called "concubinato." This term refers to two people who cohabit as a couple without being married. To be considered in a concubinato relationship, both partners must meet certain criteria: neither can be a minor, and neither can be legally married to someone else. The legal recognition of concubinato is becoming more robust, providing better protections for unmarried couples across Mexico.
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The legal principle of stare decisis is not recognised in Mexico
The Mexican legal system is based on civil law, which is rooted in Roman law. This is in contrast to common law, which has its origins in the courts and is based on precedents set by previous court decisions. In Mexico, legal authority rests with legal scholars, who produce legal treatises called "doctrina" that serve as a reference for judges, lawyers, and law students. These doctrina are not legally binding and do not carry the force of law. Instead, Mexican law recognizes custom, rules, principles, and norms that have formed over time, provided they are based on explicit provisions of applicable laws.
The principle of stare decisis, which is fundamental to common law, is not recognized in Mexico's civil law tradition. Stare decisis represents the idea that legal principles should be decided upon and developed consistently and predictably, guided by existing precedents. It aims to prevent arbitrary decision-making and foster unbiased and consistent legal outcomes. While stare decisis is a crucial concept in American law, it is not absolute, and the Supreme Court has overturned its own precedents in response to changing social and political circumstances.
In the Mexican legal system, there is no concept of case law, and previous court decisions do not set precedents. Instead, "jurisprudencia" is established when the Supreme Court and federal collegiate courts issue five consecutive and consistent decisions on a point of law. This means that for a principle to be considered jurisprudence in Mexico, it must have been consistently decided upon in at least five separate cases. This approach ensures that the law can adapt to changing circumstances while maintaining consistency and predictability.
The lack of recognition of stare decisis in Mexico's civil law system has implications for legal research and interpretation. Mexican lawyers are trained in the civil law tradition, which emphasizes the importance of finding the appropriate "doctrina" or legal treatise. However, the absence of stare decisis means that previous court decisions may not provide definitive guidance, and legal scholars' interpretations can evolve over time. This dynamic nature of legal interpretation in Mexico's civil law system allows for adaptability and the incorporation of social and political changes into legal decision-making.
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Mexico has its own version of common law marriage, called concubinato
Mexico has its own version of common-law marriage, called concubinato. This is a union of two people without a marriage contract, who live together and share a life to support each other. While some codes define concubinato as a union between a man and a woman, other codes refer to a union between two people, and this has been recognised for same-sex couples by some legislations.
The requirements for concubinato vary across Mexico's states, with each state having its own legislation on family law. However, there are some common elements. For example, in the State of Mexico, concubinato is defined as a relationship between a man and a woman who are not married, without legal impediments to marry, living together and sharing a life for a minimum of one year. In the State of Nuevo León, the definition is similar, but the time period is two years. In the State of Veracruz, the definition is broader, referring to the union of two people, and the time period is between one and three years, depending on the legislation.
The concubinato union gives rise to certain rights and obligations, such as the right to receive food, succession rights, prison visits, and rights to services and social security benefits.
The number of couples living in concubinato has increased considerably in recent years, according to INEGI data. However, many couples are unsure of the legal implications of concubinato, including the rights of children born within this type of union.
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The civil code is the most important embodiment of law, based on Roman law
The Mexican legal system is based on the Constitution of Mexico and follows the civil law tradition. The civil code is the most important embodiment of the law, which is based on Roman law. The civil law tradition was developed by legal scholars, as opposed to the common law tradition, which was developed by 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 refer to the doctrine of leading legal scholars, just as their common law tradition counterparts refer to case law.
The civil code is one of five major codes in Mexico, the other four being the commercial code, the criminal code, the civil procedures code, and the criminal procedures code. The civil code is based on Roman law, which was rediscovered in Italian universities during the Renaissance. Roman law, along with canon law and medieval commercial law, has been an important historical contributor to the Mexican legal system. The influence of Aristotle, interpreted by Thomas Aquinas, also inspired Western scholars to seek the "essence" of legal concepts, which were not part of the original Roman law.
The amalgamation of Roman law and Aristotelian philosophy led to the development of a legal system considered a science, on par with other social sciences. This science is based on the search for the "essence" of legal concepts, which are then classified according to their particular characteristics. For example, the Civil Code defines contracts as " [those] agreements that produce or transfer obligations and rights."
The civil code is an important embodiment of the law in Mexico, as it provides a structured and rational approach to formulating rules and laws that can be applied to various situations. The civil law tradition assumes that using a rational scholarly process can lead to the development of codes that are detailed and vast in size, aiming to cover most, if not all, possible scenarios. This comprehensive nature of the civil code is a key reason why it is considered the most important embodiment of the law in Mexico.
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Frequently asked questions
No, Mexico does not have common law. It is a "civil law" country, and its legal system is based on civil law.
Common law is based on case law and statutory law, whereas civil law is statutorily based, and cases are decided by looking at the law.
Mexico's civil law system is derived mainly from Roman law as set forth in the compilation of codes and statutes called Corpus Juris Civilis and later refined in the Napoleonic Code.
Unlike in the US, where lawyers cite cases interpreting a statute, Mexican lawyers study the applicable legal provisions and court decisions specific to an area.
Yes, Mexico has a similar concept called "concubinato." It refers to two people who cohabit as a couple without being married. To be considered a concubinato couple, partners must meet certain criteria, such as both being over the legal age and not married to someone else. They can register their relationship and obtain a certificate.
