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 of 1804. In contrast, the US system is based on common law and relies heavily on case law and statutory law from England and the early American colonies. While the civil law tradition in Mexico was developed by legal scholars, the common law tradition was developed by judges and lawyers. This fundamental difference between the two legal systems means that in Mexico, lawyers study the applicable legal provisions and court decisions limited to specific areas, rather than citing past cases to interpret statutes as they do in the US.
| Characteristics | Values |
|---|---|
| Type of legal system | Civil law |
| Legal treatises | Doctrine ("doctrina" in Mexico) |
| Legal authorities | Legal scholars |
| Legal tradition | Derived mainly from Roman law |
| Legal code | Based on the civil code |
| Court system | Ordinary jurisdiction and administrative courts |
| Litigation | Limited |
| Jury trials | None |
| Presumption of innocence | No; accused are presumed guilty until proven innocent |
| Evidence gathering and witness selection | Handled by judges |
| Contract law | Requires an agreement between parties |
| Common-law marriage | Recognized as concubinato |
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What You'll Learn
Mexico's legal system is 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 system is rooted in case law and statutory law from England and its early colonies, Mexico's legal system is derived mainly from Roman law, as laid out in the Corpus Juris Civilis, and later refined by the Napoleonic Code of 1804.
The civil law tradition in Mexico was developed by legal scholars, whereas the common law tradition was developed by judges and lawyers. The "authorities" in the Mexican legal system are these legal scholars, who produce legal treatises called "doctrina". These are referred to by judges, lawyers, and law students in a similar way to how the common law tradition refers to case law. However, these scholarly contributions are not legally binding.
The civil law system in Mexico is statutorily based, meaning that cases are decided by examining the law itself, rather than relying heavily on past precedent, as is the case in common law systems. This means that Mexican lawyers study the applicable legal provisions and court decisions limited to specific areas, whereas US lawyers and businesspeople must also cite interpreting cases when discussing a statute.
Another key difference is that Mexico does not have jury trials, and in criminal cases, the accused is presumed guilty until proven innocent. Judges are responsible for evidence gathering and witness selection. In contract law, Mexico's legal system requires the prior existence of a principal contract for guarantee agreements, which is not the case in the US.
While the term "concubinato" in Mexico may sound similar to the English word "concubine", it simply refers to two people cohabiting as a couple without being married. This is Mexico's version of a common-law marriage, and it grants certain rights to surviving partners.
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The civil law tradition was developed by legal scholars
Mexico is a federal republic with a federal government, 31 individual state governments, and a Federal District. The law of Mexico is based on the Constitution of Mexico and follows the civil law tradition. The civil law tradition was developed by legal scholars, not judges and lawyers, as is the case with the common law tradition. The legal treatises produced by these scholars are called "doctrine" ("doctrina" in Mexico) and are used much in the same way as case law in the common law tradition. However, these scholarly contributions are not legally binding.
The civil law tradition tends to treat the divisions of law in normative terms. There are two major areas of law: private law, which concerns the relationships between individuals, and public law, which concerns the relationships between individuals and the government. The civil code, based on Roman law, is the most important embodiment of the law.
In the Mexican legal system, the hierarchy of sources of law can be viewed as the Constitution, legislation, regulations, and custom. Alternatively, the hierarchy can be viewed as the Constitution, treaties, statutes, codes, doctrine, custom, and then general principles of law. Each of Mexico's 31 states and Mexico City has its own constitution, known as a state or local constitution.
While the US system is based on case law and statutory law from England and the early American colonies, Mexico's system is derived mainly from Roman law. It is set forth in the compilation of codes and statutes called Corpus Juris Civilis and was later refined in the Napoleonic Code of 1804. While the US system relies heavily on precedent, case law is only sparsely consulted in Mexico.
In Mexico, when the law is unclear, judges look to legal treatises called "doctrina" written by legal scholars. This is different from the common law tradition, where judges, lawyers, and law students refer to case law.
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'Concubinato' is Mexico's version of common-law marriage
Mexico's legal system is based on civil law, which was developed by legal scholars and is derived mainly from Roman law. The country's system is different from the United States, which is a common law country based on case law and statutory law from England and early American colonies.
In Mexico, common-law marriage is known as "concubinato". The term is derived from the word "concubine", but it does not carry the same connotation in Mexican law. It simply 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.
The recognition of concubinato in Mexico is becoming more robust, providing better protections for unmarried couples. However, it is still recommended to register the concubinato status, especially if the couple is accumulating assets or co-parenting. Proving concubinato may grant a surviving partner certain rights, but preparing a Mexican will is still strongly encouraged.
While concubinato is Mexico's version of common-law marriage, it is important to note that the legal treatises produced by scholars, known as "doctrine" or "doctrina", are not legally binding in the country. Instead, they are used similarly to case law in the common law tradition.
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The Mexican legal system encourages preparing a will
Mexico's legal system is based on civil law, which was developed by legal scholars, and not judges and lawyers as in the common law tradition. Each of Mexico's 31 states and Mexico City has its own constitution.
In most states, when a foreigner who does not speak Spanish goes to a Notario to prepare a will, they are told to handwrite a testament, which is then translated word for word. If the person preparing the will does speak Spanish, they can tell the Notary Public what they want, and their wishes are given legal form. However, this means that little thought is given to the complexities of an estate plan, especially international estates, family relationships, US or Canadian estate taxes, and survivorship issues.
It is important to note that Mexican wills automatically revoke any other wills unless there is a non-revocation clause. Wills in Mexico must be in Spanish, and any changes of intent require a new will. When possible, the executor of the will should live in Mexico or be given the power to hire a Mexican representative.
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The court system distinguishes between ordinary and administrative courts
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 of 1804. The civil law tradition was developed by legal scholars, unlike the common law tradition, which was developed by judges and lawyers.
The court system in Mexico distinguishes between courts of "ordinary jurisdiction" and administrative courts or courts of "special jurisdiction". Courts of ordinary jurisdiction include federal courts and state courts, such as the Mexican Supreme Court and circuit courts. These courts deal with civil, commercial, and criminal matters. Below these are minor courts of special jurisdiction, such as family courts and bankruptcy courts.
Administrative courts, on the other hand, are of particular importance to manufacturers as they hear matters pertaining to labour and workplace issues. They are also not bound by the same jurisprudencias as ordinary courts. In Mexico, regulatory agencies frequently issue binding rulings and regulations that carry the weight of case law. This dynamic and diverse body of administrative law is slowly gaining prominence over the country's traditional civil law system.
While the term "common law" is often associated with unmarried couples living together, this concept exists in Mexico under the term "concubinato". To be considered in a concubinato relationship, both partners must meet certain criteria: neither can be a minor. Proving concubinato can grant a surviving partner certain rights, but preparing a Mexican will is still strongly encouraged.
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Frequently asked questions
No, Mexico is a civil law country. The law of Mexico is based on the Constitution of Mexico and follows the civil law tradition.
Common law is based on case law and statutory law, whereas civil law is based on a compilation of codes and statutes. Common law relies on past precedents, while civil law is derived from Roman law.
In Mexico, common-law marriage is known as "concubinato". It refers to two people who cohabit as a couple without being married. While concubinato is legally recognised in Mexico, it is important for couples to register their status, especially if they are accumulating assets or co-parenting.
