August 30, 2018 ILN

Book Review: Mexico and Its Legal System: Lawyers' Essays on the Continuing Evolution

Reviewed by Judge Manuel González Oropeza

Eight Mexican lawyers and one visitante extranjero, all jurists knowledgeable concerning the legal challenges associated with the realities of contemporary Mexico, share their views on some of the most interesting issues of the legal framework and situation of Mexico, ranging from family law through agrarian law, and spanning as well across constitutional law, the organization of the legal profession, judicial review, and foreign investment in Mexico and Its Legal Systems: Lawyers’ Essays on the Continuing Evolution.

Mexico and Its Legal System: Lawyers' Essays on the Continuing Evolution

The book is a rich resource for practicing lawyers and business people dealing with Mexico but also speaks broadly on the fundamental rule of law and law reform aspirations of the American Bar Association and its members. It affords insight into current political and economic developments on both sides of the border shared by Mexico and the United States. The work is an extraordinary tool for students of law, political science and sociology, who seek to approach Mexican law through concurrent legal and sociological perspectives.

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Each of these respected specialists is related to the Faculty of Law of the Universidad Panamericana, Guadalajara campus. Each shares professional expertise to offer an up-to-date status of the disciplines just mentioned. This work was prepared in close collaboration with the Mexico Committee of the American Bar Association Section of International Law, building on seven years of constructive interaction between the Faculty of Law and the committee.

The legal profession in the United States is one of the most cultivated and organized of the Americas, and its close ties to Mexico reflect this valuable attribute. In affirmation of Steve Zamora’s focus on the importance of developing an understanding in the United States of the legal profession in Mexico, appreciation of the legal practice and culture of Mexican law has been not only interesting but also necessary for American legal scholars and practitioners. The growth in university curricula and bibliography present in the United States relative to Mexican law demonstrates this assertion.

I hope that the example of this work, co-published by the American Bar Association and Carolina Academic Press, may also inspire the equivalent for Mexican lawyers, who likewise need to benefit from increased familiarity with law as practiced in the United States.

According to the groupings of contributions suggested by co-editor Yurixhi Gallardo in the Introduction to this book, the two contributions in the initial group are: first, a treatment of maternity and the workplace that delves deeply into the fabric of labor rights, gender discrimination, and social policies; and, second, a review of the political rights of foreigners in Mexico, painting a picture that contrasts sharply with the situation in the United States.

By promoting measures through which women with children may develop their abilities in workplaces, and that are compatible also with the possibility to work at home without their continuing presence in an office so that they might devote more attention to their children, Maria Isabel Álvarez Peña depicts the achievement of gender equality policies in the broadest sense, in which equality may mean to accord distinct treatments to specific actors. In this regard, it is noteworthy to recall the 2003 adoption of Mexico’s Ley Federal para Prevenir y Eliminar la Discriminación (Federal Law to Prevent and Eliminate Discrimination). That law proscribes the practice in the maquiladora industries through which potential women workers who might be pregnant were screened out of consideration by employer insistence on the conduct of pre-hire pregnancy tests.

Dealing with equality and differences between nationals, foreigners, and those whom Guillermo Alejandro Gatt Corona denominates as “Mexicans by choice,” that it is to say, those naturalized as Mexicans, he offers an interesting panorama of legal problems related to nationality that is far simpler than in other latitudes. The author advocates the full enjoyment of political rights for those who are Mexicans by choice and the possibility for them to run for elective office in Mexico. This is quite plausible when taking into account Mexico’s long tradition through which foreigners and nationals have enjoyed the same recognition of their fundamental rights since the nineteenth century. The enduring quality of this tradition is all the more remarkable in view of the frequency of foreign invasions of Mexico through the nineteenth century.

Jose Cecilio del Valle, born in Honduras and living in Guatemala, served as a representative in the Congress (1822), and as Minister of Foreign Affairs (1823), of Mexico. Vicente Rocafuerte, born in Ecuador, was a diplomat accredited by Mexico to represent it before various European powers (1834). A great example of Mexico’s openness toward foreign citizens was the episode of colonization in Texas when Mexico gave the American empresarios citizenship and land to cultivate. Because of these concessions to U.S. citizens then transformed into Mexican nationals (first and foremost, Stephen–Esteban Austin), they were eligible for Mexican elective office even prior to the Constituent Convention that approved the first Constitution of the states of Coahuila and Texas, as part of the Mexican Federation (1827).

In accord with the full recognition of fundamental rights to all foreigners, in Mexico we do not label foreigners as “aliens,” a term that would imply an extraterrestrial quality of otherness to such persons. Indeed, more and more involvement of non-Mexicans is broadly accepted, even in political issues. Since the federal elections of 1994, foreign persons and institutions have been authorized to conduct electoral observation in Mexico. They are termed visitantes extranjeros. This is a label that we should replace with the regular terminology of “international election observer.” Co-editor and contributor Patrick Del Duca, a member of the Section of International Law and of the California Bar, expresses his insights into the election of 2015 as such a visitante extranjero. Regularly, Mexico and many other countries find compelling and legitimating the concept of incorporating into their electoral processes both domestic and international observations, whether to redress failures during the electoral implementation by administrative and judicial authorities or to address the defects of relevant regulation and legislation.

The second group of essays encompasses what it defines as the structural elements of the Mexican legal system, beginning first with commentary on the first century of Mexico’s Constitution. Technically, however, the 1917 Constitution is a set of amendments of an older Constitution (1857). As such, the first of these essays frames some key issues raised by the writ of amparo, Mexico’s predominant form of judicial review of the constitutionality of actions under color of law, with more than 170 years of practice in Mexico reaching back to constitutional developments in Mexico in the nineteenth century. Further essays in this group address developments relative to the modern techniques of alternative dispute resolution, as well as proposals to organize the legal profession.

From 1824, Mexico adopted a federal system with many contradictions that sharply divided the country in the first half of the nineteenth century. As of 1917, the political cleavages were resolved, but the Constitution continued, in the style of the constitutive document of a confederacy, to contain a detailed description of the legislative competences of the federal government. This form of drafting remains the subject of revision and future amendments. Armando Cruz Covarrubias articulates the dissatisfaction that is shared by the states before an all-encompassing federal government that, once having touched a legislative subject, excludes the participation of the state governments, ever ratcheting up the degree of centralization of the system. How might this tendency that began from at least 1883 be reversed? This is the problem advanced during the celebration of the first century of the 1917 Constitution.

In the area of judicial review, the procedural rules and the various ways through which to challenge the constitutionality of any act, authority, or legal norm have developed in such a complicated fashion, as explains Alberto Estrella Quintero, that many problems remain unsolved. Indeed, they await new legal reforms or clarifications of relevant Mexico legal doctrine expressed in Mexico’s articulation of stare decisis doctrine through the formulation of jurisprudencia by its courts.

In the interesting article written by Yurixhi Gallardo, the American reader will encounter the approaches to the legal profession in Mexico that are distinctly relative to those of the United States. In Mexico, a certified diploma by an accredited institution of higher education suffices to practice law throughout the country, once that title has been registered by the Ministry of Education. In contrast, in the United States, aspiring lawyers are accredited through passage of a state bar examination. The distinct approaches of Mexico and the United States have their own unique historical and cultural roots. In both countries, the link between the legal profession and the corresponding entitlement to practice has existed from the beginnings of the practice of law. In Mexico, the early practice was that aspiring lawyers were subject to an examination before the corresponding Supreme or Superior Court, submitting a paper and discussing it before the judges. As the number of would-be lawyers grew, the system evolved to fall under university responsibility. Throughout, the entitlement to practice law in Mexico has remained an individual relation, independent from the voluntary associations of lawyers in Mexico commonly known as colegios or barras.

In the last group of articles that are related to economic activities are two essays: one on foreign investment and the concluding contribution on land reform law. Since the beginning of the twentieth century, foreign investment has been fundamental to Mexico. However, in view of the dramatic declarations of change of economic policy expressed from the vantage of the United States, Mexico’s approach to foreign investment and the revision of NAFTA merit thorough meditation. A key question is the extent to which foreign investment and NAFTA policies have created a dependency on foreign capital and goods (corn, for example) that may be counterproductive to real development for our country.

A fundamental reform of agrarian law occurred in 1992. As Isaías Rivera explains, the reform transmuted the structure of the ejido and its approach to collective property ownership, which were previously impervious to modification, so as to allow relevant landholdings to be owned as private property. However, agricultural productivity does not appear to have benefited significantly from the reform, notwithstanding the numerous governmental programs to support consumption and production.

This book is important for its content and its timeliness. It is published in the context of crossroads for two changing nations, each of which appears launched on its own, distinct transformation. Mexico after one hundred years under its Constitution of 1917, marked by abundant constitutional and legal redefinitions, needs to find its new path, while accommodating the changes, whether for better or worse, undertaken by the United States. This is a challenge to which legal scholars, and in particular those writing in this work, may usefully contribute through their reflections in reasoned dialog with their counterparts in the corresponding profession of our neighboring partner.

Foreword excerpted from Mexico and Its Legal System: Lawyers’ Essays on the Continuing Evolution, published by the American Bar Association Section of International Law and Carolina Academic Press. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Mexico and Its Legal System

Mexico and Its Legal System

Judge Manuel González Oropeza

Judge Manuel González Oropeza is a former magistrate for the federal electoral commission of Mexico and is a professor in the School of Law at the National Autonomous University of Mexico [Universidad Nacional Autónoma de México, UNAM].