Recodification of Civil Law in Puerto Rico: A Quixotic Pursuit of the Civil Code for the New Millennium

Recodification of Civil Law in Puerto Rico: A Quixotic Pursuit of the Civil Code for the
New Millennium
Marta Figueroa-Torres*
Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it,
they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for
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I. Introduction
The voice quixotic evokes idealism, optimism, fulfillment of dreams… I mean them all in the
title of this paper, in order to neutralize the skepticism of those who thought it was impossible to
get to the state where the process of recodification of Puerto Rican private law is today. This is
just another example of what a good dose of quixotism can attain. No doubt the voice quixotic in
this context also epitomizes the Spanish heritage of the Puerto Rico Civil Code and allows me to
join the recent celebration of the four hundredth anniversary of Cervantes' obra maestra.
Puerto Rico’s mixité is connected to the transfer of sovereignty to a common law country
because it is an unincorporated territory of the United States since 1898.1 At the time of the
invasion, Puerto Rico had a legal system inherited from Spain, the former sovereign, and,
accordingly, founded on the civil law tradition of continental Europe. Political change meant an
intense transformation of very important aspects of the legal system. Nevertheless, the Civil Code
that Spain had extended to Puerto Rico only a few years earlier was not replaced, although it was
questionably amended by a Commission appointed to “harmonize” Puerto Rican law with the
new political regime.2

* Associate Professor, Interamerican University of Puerto Rico School of Law, Executive Director of the Permanent
Joint Commission for the Revision and Reform of the Civil Code of Puerto Rico. LL. M., 1991, Harvard University;
Juris Doctor, 1989, University of Puerto Rico School of Law (Magna Cum Laude); B.S.B.A, 1986, University of
Puerto Rico (Magna Cum Laude). This paper is appearing in the Tulane European and Civil Law Forum (TUL. EUR.
& CIV. L.F., ISSN 1045-8891) vol. 23, Spring issue 2008, and is published in the EJCL with the permission of the
TUL. EUR. & CIV. L.F. Board of Editors.
1 For a detailed discussion see Ennio Colón et als, Puerto Rico Report, in MIXED JURISDICTIONS
WORLDWIDE: THE THIRD LEGAL FAMILY 364-424 (Vernon Valentine Palmer ed. 2001).
2 The Civil Code of Puerto Rico came into effect on January 1, 1890, by virtue of a Spanish Royal Decree of July 31,
1889. Other Spanish Codes were extended to Puerto Rico as well. For a detailed analysis, see, Rodriguez Ramos,
Interaction of Civil Law and Anglo-American Law in the Legal Method of Puerto Rico, 23 TUL. L. REV. 1, 20 (1948).
(discussing, inter alia, the incorporation of some provisions of the 1870 Louisiana Civil Code in the text of Puerto
Rico’s code).
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A long road still lies ahead in Puerto Rico’s recodification effort, but at a stage where
draft proposals for a revised Civil Code have been opened to public discussion; there is already a
wide spectrum of issues to debate. This paper addresses crucial questions from the perspective of
an academician who has participated in this process since its very beginning. The discussion
includes preliminary inquiries related to the virtues of recodification itself, and to the institutional
framework, conceptualization and methodology of the process. It then examines some
emblematic difficulties of recodification in mixed legal systems and analyzes some lessons
Puerto Rico can learn from Louisiana’s Civil Code revision experience.
II.
To Recodify or Not to Recodify? That Was the First Question
The governmental branches answered the claim for reform of the Civil Code of Puerto Rico by
chartering the Permanent Joint Commission for the Revision and Reform of the Civil Code of
Puerto Rico (hereinafter “the Commission”) as the official Civil Code reform office.3 Since 1998,
the Commission has undertaken a comprehensive, structured, and unprecedented reform of the
most important body of Puerto Rican private law.
Like most nineteenth century civil codes, Puerto Rico’s has experienced the intense
effects of a changing socioeconomic context. It has not been modernized correspondingly with
the realities of present times and it has been another victim of the unsatisfactory political relation
with the United States, since some federal laws have a great impact on matters otherwise
regulated in the Civil Code. Moreover, it has suffered the consequences of partial amendments,
some of them unavoidable, but with the corresponding effect of altering the characteristic
harmony and synchronization of a civilian Code. Beyond partial legislative initiatives, the Civil
Code has not been truly revised or reformed integrally. A technical revision took place in 1930.
The most important set of partial amendments is referred to as “the 1976 reform”, but it was
limited to changing the legal capacity of married woman and other rights and obligations of
spouses.
Two other important elements prove that the Puerto Rico Civil Code has not escaped the
ordeals of decodification.4 First, the proliferation of special legislation in matters connected to
the Code, which, too often, has been used as an isolated answer to the need for reform, thereby
compromising the Code’s self-sufficiency and primacy. Second, the impact of jurisprudential and
doctrinal developments, including those that followed the constitutional challenge of codified
norms after the adoption of the Constitution of Puerto Rico in 1952. Lest it not suffice, we must
add the continuous battle between two juridical traditions that Puerto Rican law has been
confronting since the turn of the twentieth century, a battle in which our Civil Code has definitely
been the most injured victim.5

3 See Law Num. 85 of August, 16, 1997, 2 L.P.R.A. § 141 et se.
4 See, Díez-Picazo, Codificación, descodificación y recodificación, XLV Anuario de Derecho Civil 473 (abril-junio
1992); Guzmán Brito, et al., DE LA CODIFICACIÓN A LA DESCODIFICACIÓN (1999) Ediciones Universidad
Diego Portales.
5 See Trías Monge, EL CHOQUE DE DOS CULTURAS JURÍDICAS EN PUERTO RICO (1991). See also Fiol
Matta, Civil Law and Common Law in the Legal Method of Puerto Rico, 50 AM. J. COMP. L. 783 (1992); Fiol Matta,
Civil Law and Common Law in the Legal Method of Puerto Rico: Anomalies and Contradictions in Legal Discourse,
24 CAP. U.L. REV. 153 (1995); Fiol Matta, El Control del Texto: Método Jurídico y Transculturación, 68 REV. JUR.
U.P.R. 803 (1999).

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Much has been said and written about the development of the nineteenth century
codification phenomenon, and there is no need to repeat it.6 Instead, I will advance directly that
we are convinced that the vast codification movement experienced in most juridical systems
confirms the adequacy of that method for the expression of private law. Moreover, it has been
asserted that “If European private law is ever to become positive law within the European Union,
it seems inevitable that it will do so in legislative, and therefore in codal form; and this whether it
coexists with or supplants national and regional laws”.7 We are convinced as well that the
soundness of codification requires the renewal of existing codes to conform them to the new
social, cultural, political, economic and technological circumstances.
Thus, the process of recodification of the Civil Code of Puerto Rico is a testimonial in
support of codification.8 It is a negative answer to the enticing -and easier- option that posits the
obsolescence of traditional codes to justify the obligatory transition to an era of so-called special
legislation. Acquiescence to legislative inflation, instability and opacity of norms is a threat to
juridical certainty, one of the most appreciated values of law, which in turn depends on the
stability, uniformity, and coherence of norms.9 Historical and political circumstances in which
second generation codes are being re-codified are quite different from original codification, but
some principles and goals of the latter underlie the former.10 This argument does not neglect that
recodification faces challenges of its own. For example, globalization is an enormous trial that
original codification did not face, inasmuch as it demands harmonization of laws to the greatest
extent, thus rendering unification critically important in many fields of private law.
One final imperative validates the need for recodification of private law in the
contemporary mixed jurisdiction of Puerto Rico: the legitimate and enduring need to preserve its
civil law tradition and culture. This is one of very few issues on which consensus can be reached
among the Puerto Rican legal community. Thus, no one would seriously suggest nor accept the
official resignation to decodification of civil law in Puerto Rico, for recodification has an
important figurative value, both in cultural and linguistic contexts.
Before proceeding any further, it is necessary to clarify the meaning ascribed to the term
re-codification in this paper. That concept, as well as its companion terms revision and reform,
could lead to various interpretations, partly because recodification has not yet consolidated and is
thus unrefined, as the following passage reflects:

…As an institution of civil law legislative process, [Recodification] … is confused with
revision. Yet, howsoever complete and exemplary, it is unlikely that episodic revision
merits the name of recodification. Revision relies on the old legal order and is derivative.

6 See, Reinhard Zimmermann, Codification: History and Present Significance of an Idea, 3 European Review of
Private Law 95 (1995). Cf. Pierre Legrand, Strange Power of Words: Codification Situated, 9 TUL. EUR. & CIV. L. F.
1 (1994). See also, Guzman Brito, LA CODIFICACIÓN CIVIL EN IBEROAMERICA (1999) (Editorial Jurídica de
Chile); Symposium: Codification in the Twenty-First Century, 31 U.C.DAVIS L.REV. 655 (1998).
7 See, Hector L. MacQueen, Antoni Vaquer and Santiago Espiau Espiau (eds.), REGIONAL PRIVATE LAWS
CODIFICATION IN EUROPE 16 (2003).
8 For a description of some Latin-American countries’ recent recodification initiatives see Murillo, The Evolution of
Codification in the Civil Law Legal Systems: Towards Decodification and Recodification, 11 J. TRANSNAT'L L. &
POL'Y 163 (2001).
9 A. Pau Pedrón, La Segunda Codificación, in SEGURIDAD JURÍDICA Y CODIFICACIÓN 75, 88 (Madrid, 1999)
(author’s translation).
10 Palmer, Vernon, Celebrating the Quebec Codification Achievement in THE LOUISIANA CIVILIAN
EXPERIENCE 180 (2005).

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Recodification, on the other hand, is the implementation of a modern legal order tempered
to the pitch of contemporary realities…Recodification is something more than codal
reformulation. It is an invitation to re-establish the modern civil law on correct
principles.11

I submit that Puerto Rico demands a comprehensive and systematic recodification
process that would preserve its civilian tradition and method. Thus, the aspiration in this process
that I generically label as recodification, is to revise and reform Puerto Rico’s Civil Code and
not simply to restate existing law. Finally, technically speaking, this is the first time our country
has the opportunity to draft a truly Puerto Rican Civil Code. The existing one was imposed, first
by the Spanish monarchy and then by the military power of the United States. Therefore,
ongoing recodification of Puerto Rican civil law is a precious opportunity to accomplish what
has long been an undone and pending assignment.
III. Methodology
The Commission initiated the development of different components of the process
simultaneously, from administrative logistics of establishing the office to the elaboration of the
work plan for the revision. One of the first and most important objectives was, and still is, to
convince legislators that this is not a traditional legislative initiative, and that it should not be
addressed as if it were so, thus requiring their understanding and acceptance of the magnitude and
depth of the venture and their willingness to deviate from ordinary legislative practice.
Another important aspect in which we had to persuade the legislators was on the fact that
an overall and thoughtful reform of the Civil Code will take years and that the progress of this
endeavor must be deliberate and carefully accomplished. This is particularly difficult since the
concerns of the legislature are usually urgent and centered on political, governmental or
budgetary aspects.
A brief description of the different phases of the recodification process follows.12
A.
Conceptualization of the Process
The re-codification process began with the theorization about its nature, scope, structure and
methodology. At this early stage, public hearings were conducted to receive the opinion of law
professors, lawyers, and other interested persons and institutions on how the revision process
should unfold. Two main aspects dominated what was officially named as the conceptualization
stage.

11 Michael McAuley, Proposal for a Theory and a Method of Recodification, 49 LOY. L. REV. 261, 262-263 (2003).
12 For a detailed analysis of the complete revision effort and for the description of ancillary activities developed by
the Commission, such as the creation of a library of electronic links and a comprehensive comparative table of civil
codes, see the Annual Reports at http://www.codigocivilpr.net/. (last visited Sep. 29, 2007)

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1.
Study of the Revision Experience Abroad
From its inception, the Commission recognized the importance of the comparative perspective
and was interested in contacting recognized scholars and jurists who were knowledgeable of the
revision process of their respective countries or jurisdictions. For obvious reasons, we began by
meticulously studying the revision experience of two mixed jurisdictions: Louisiana and
Quebec.13 Later on the study focused on the revision experience, either partial or comprehensive,
of Spain, France, Germany, Portugal, Netherlands, Italy, Argentina, Brazil, Peru, and Mexico,
inter alia.
Comprehensive analysis of the revision experience in other countries has been very
valuable and has incorporated Puerto Rico into the re-codification debate. In fact, the
Commission co-founded a group of Revision Commissions, which signed the Arequipa
Agreement for the collaboration and exchange of information to further doctrinal writings on the
revised codes and its proposals.14 The following passage reminds us that respect for the
comparative method has been a constant feature of the civil law tradition

[B]before any project was prepared for the XII Tables, a mission was sent to Greece to
study the laws of Solon. Justinian’s Corpus Juris Civilis was the result of a process of
selection from the products of the classical period in Roman Law, which itself had been
greatly influenced by Greek philosophy. The Siete Partidas of Spain was the fusion of
early customary law with the pre-Justinian Roman Law Code of the Barbarians, into
which had been integrated a large contribution from Justinian’s Digest, particularly in
Partidas III, V, and VI. 15

2.
Guiding Criteria for the Reform
The conceptualization stage ended with the unanimous adoption of the guiding criteria or
principles for the reform by the members of the Commission. That document plays the role of a
Ley de Bases (basic framework law) and establishes general as well as specific criteria, with the
purpose of giving homogeneity to the work of the different working groups. Due to the limits of
this paper, I must refer the reader to the full text of the document, which includes specific criteria
for all matters regulated in the Code 16

13 Some prominent jurists made valuable recommendations on a then prospective recodification process, drawing on
the revision experience of the Civil Codes of Québec, Louisiana and some continental Europe countries. See, Hein
Kötz, Civil Code Revision in Continental Europe: The Experience in the Fields of Contract and Tort, 52 REV. JUR.
U.P.R. 235 (1983); Jean-Louis Baudouin, The Reform of the Civil Code of Quebec: Objectives, Methodology and
Implementation, 52 REV. JUR. U.P.R. 149 (1983); Christopher Osakwe, Cogitations on the Civil Law Tradition in
Louisiana: Civil Code Revision and Beyond, 52 REV. JUR. U.P.R. 179 (1983).
14 For the full text of the Arequipa Act see Figueroa Torres, M., Crónica de una Ruta Iniciada: El Proceso de
Revisión del Código Civil de Puerto Rico, 35 REV. JUR. U.I.P.R. 491, (2001).
15 John Tucker Jr., Tradition and Technique of Codification in the Modern World: The Louisiana Experience, 25 LA.
L. REV. 698, 710-711 (1965). A more recent example is the influence of Louisiana's code experience in Estonia. See
Paul Varul & Heiki Pisuke, Louisiana's Contribution to the Estonian Civil Code, 73 TUL. L. REV. 1027, 1029 (1999).
16 See Criterios Orientadores que Guiarán el Proceso de Revisión del Código Civil de Puerto Rico, 1998 Annual
Report at: http://www.codigocivilpr.net (last visited Sep. 29, 2007).

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The criteria document explicitly states that the catalog is not numerus clausus and
recognizes the authority of the Commission to identify other aspects that should be addressed.
Upon approval of the guiding criteria, the revision process was divided in the following four
phases.
B.
Four Phases for a Proyecto
1.
First Phase: Preparatory Studies
At the outset of the project, Preparatory Studies were made to approach the existing Code
diagnostically. They contain initial recommendations on whether the norms should be repealed,
modified minimally or substantially changed; they identify those matters that should be codified
and those that should be kept in special legislation but harmonized with the Civil Code; and
address the effects of the recommendations on other parts of the Code or on special legislation.17
2.
Second Phase: Research and Analysis
In this second phase, the members of the working groups had the task of preparing individual
reports on the topics of their expertise, examining the origin and historical evolution of the
juridical institutions, its current state in Puerto Rican law, the solutions given in other
jurisdictions, and the legislative, doctrinal, and jurisprudential trends in the subject matter. At this
stage the reports included specific recommendations but the consultants were not required to draft
proposals.
3.
Third Phase: Preliminary Drafting and Public Discussion
A reduced number of redactors developed this phase, in order to minimize the inherent
difficulties of this stage. It was a complex and meticulous process that used the work done in the
two previous phases as platform. As has been the case in most countries, in this preliminary
drafting stage the work of redaction was confided mostly to academic jurists who are experts in
their fields, with the corresponding support of staff researchers. In this phase we recaptured the
discussion on the structural aspects of the revised code and decided to commend the inclusion of
a general part. For multiple reasons, the drafting phase of the different books could not be
finished as scheduled.
Following a legislative procedure with no precedent in Puerto Rico, at this juncture the
Commission accepted our proposition to begin public discussion of the drafts of the different
books without approving them. The decision was risky but successful, since the discussion of
preliminary proposals provided an opportunity to receive input from the wider legal community
and to fine-tune the scientific theory of the academy with the functionalities of legal practice.
The principal law-related government officials also made important contributions in the
public discussion process as well as the different representatives of civil society. Discussion of
draft proposals provided the legislators the opportunity to postpone final policy decisions on
substantive controversial issues, thereby permitting public discussion of the proposals as drafted

17 See Preparatory Studies at: http://www.codigocivilpr.net (last visited Sep. 29, 2007).

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by the redactors. This will contribute to a truly democratic revised Civil Code that better reflects
the realities of the Puerto Rican society.18
Another analogy is in order in this context, which underlie the importance of
comprehensive discussion in the preliminary drafting stage:

When the decemvirs posted the Ten Tables on the walls of the forum for all to read and
discuss, and subsequently, as a result, added two additional tables, they gave the earliest
and perhaps the most democratic example of the vital need for thorough discussion in the
preparatory stage of code redaction. 19
4.
Fourth Phase: Articulation and Final Drafting
The Puerto Rico Revised Civil Code (hereinafter the “Proyecto”) will have approximately 2,000
articles, grouped in a preliminary title, seven books and a final title on transitory and derogatory
provisions. Thus, it is a monumental project, both in terms of its scope and its complexity. As is
well known, other countries that have ventured to reform their codes, or have even attempted it,
dedicated several decades to that undertaking.20
At the end of public discussion of the drafts, the Commission will be ready to begin the
articulation and final drafting phase of the Proyecto. The first complete draft will mark the
beginning of a stage in which all efforts and resources will be dedicated to the assessment of the
project as a whole, to guarantee that the revised Code retains the coherence, integrity and
harmony of a civil law code. We are aware, of course, that even with the coordination efforts
made by all jurists who participated in the drafting phase, it is perfectly normal in an enterprise
like this to find contradictions, language and legislative technique inaccuracies, and even
structural or substantive defects. It is necessary to assure a consistent style and terminology in the
project in order to produce an interconnected and unified Civil Code. In sum, this articulation and
final drafting phase will afford the opportunity to submit to the Legislature a complete avant-
projet which reflects that it was conceived, drafted and, eventually, enacted, as a comprehensive
and coordinated whole. Therefore, this phase is the most difficult and crucial one, considered
from the perspective of any mixed jurisdiction’s effort to reform its civil code.
I am first in recognizing that it is not possible to write a proposal that satisfies everybody.
I earlier confessed myself as an idealist, but not as much. Criticism has already emerged, and it is
welcomed even from those who were invited to participate but opted to sit and wait in order to
attack the work with dubious arguments. It is also welcomed from those who accepted the
challenge to participate in the recodification effort but later abandoned it either because they were
intimidated by the enormity of the task or because they were incapable to work without imposing
their own ideas. This is by no means new; since criticizing has always been easier than doing; as
it is aptly affirmed in the Latin quote Facile est inventis addere (it is easy to add to things already
invented).

18 The Commission has an interactive web page where citizens can access all documents and express their views and
suggestions, which are in turn directed to the corresponding working groups. This scheme has been referred to by a
renowned Spanish jurist as “a good example of transparent participatory legislative procedure for the revision and
reform of a Civil Code”. See Delgado Echevarría, Una propuesta de política del Derecho en materia de sucesiones
por causa de muerte, in DERECHO DE SUCESIONES: PRESENTE Y FUTURO: XII Jornadas de la Asociación de
Profesores de Derecho Civil, (University of Murcia, Spain, Eds.) (2006).
19 Tucker, supra, note 15, at 714-15.
20 See McAuley, A Theory of Recodification, supra, note 11, at 283.

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Considerable constructive critique by prestigious colleagues who have done it in their
best spirit of collaboration has also been received.21
IV. Comparative
Perspective
The Puerto Rican recodification process confronts important challenges that are here examined
through the lens of Louisiana’s Civil Code revision experience. The reasons that justify the
decision to look ourselves in the mirror of Louisiana are varied, but a fundamental one is the
different outcome of these two mixed jurisdictions' struggle to reaffirm its civilian origins in the
midst of intensive and pervasive influence of common law. Nevertheless, before comparing some
aspects of the revision effort, I must underline the existence of some important historical,
political and social differences between Puerto Rico and Louisiana.
First, I must refer to the significance of the linguistic factor in mixed jurisdictions,
highlighted as follows:22

The mixed jurisdiction is virtually synonymous with multiethnic society speaking a
multiplicity of languages. These languages may have different roles and statuses ranging
from those officially recognized, to those widely-spoken and serving as lingua franca
between the language groups, to those whose social relevance is purely historical. For
purposes of understanding the mixed jurisdiction, however, perhaps the critical distinction
lies between the living languages (official and unofficial languages spoken by sizable
segments of the population) and the source languages of the common- and civil-law
system.

In Louisiana, language and civil law have been long divorced, since the use of French has
disappeared.23 As an English-speaking jurisdiction, Louisiana’s civil law reflects the
consequential incapacity to understand the source language of its Civil Code and the negative
impact this has had on its development. Moreover, it has been said that the revision developed in
the last three decades has severed its ties to original versions drafted in French.24

21 A significant example is the enthusiastic support which the Draft Book on Successions has received from
recognized Spanish jurists who underlie the relevance of the Puerto Rico reform process because it is, in fact, the
reform of the Spanish Civil Code's text. They have praised the successions reform for its thoroughness, as a
significant advancement in that discipline, and as extremely loyal to the Romanist tradition. See Rams Albesa, Las
deudas de la herencia: una vieja cuestión pendiente, in DERECHO DE SUCESIONES: PRESENTE Y FUTURO,
supra, note 18, at 463; Vattier Fuenzalida, El derecho de representación, Id. at 543. This appraisal contrasts sharply
with Louisiana’s revision of the law of successions, which has been characterized as “an “uncatalogued creation,”
neither common nor civil. A. N. Yiannopoulos, Requiem for a Civil Code - A Commemorative Essay, 78 TUL. L.
REV. 379, 407 (2003).
22Vernon Palmer, Introduction, Palmer (ed.), LOUISIANA: MICROCOSM OF A MIXED JURISDICTION 18
(Carolina Acad. Press 1999). See also For an analysis of the importance of the linguistic factor in other countries
with mixed legal systems see the articles submitted by Max Loubser, Celia Wasserstein Fassberg and William
Tetley in the First Worldwide Congress of Mixed Jurisdictions, 78 Tul. L. Rev. 1 (2003).
23 See Roger Ward, The Death of the French language in Louisiana Law, in Palmer (ed.), LOUISIANA:
MICROCOSM, supra, note 22, at 59.
24 Vernon Palmer, The Linguistic Factor: The Demands of Dualism, in MIXED JURISDICTIONS WORLDWIDE,
supra, note 1, at 43.

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On the contrary, Puerto Rico did not lose its Civil Code’s mother language nor broke with
the cultural ties of its sources.25 This circumstance has been decisive in shaping the perspective
of Puerto Rican lawyers towards the civilian tradition, as well as in allowing access to original
legislative and doctrinal sources without dependence on translations. Moreover, saving the
Spanish connection has always permitted Puerto Rican lawyers to pursue graduate law studies in
Spain, and, in the last few decades it has allowed as well the development of intense academic
collaboration in the form of doctoral and joint degrees programs between Puerto Rican and
Spanish law schools. The significance of the linguistic factor, referred to by Professor Palmer as
Louisiana’s “forgotten issue”,26 could hardly be exaggerated in a mixed legal system.
The second distinguishing factor is the political status of Louisiana as a federated state of
the United States, for it has exposed Louisiana civil law to a harsher influence from common law
institutions and methodology than that experienced in Puerto Rico. This is not to say that Puerto
Rico has been immune to the impact of common law, but I submit that political and cultural
resistance in general has had the effect of maintaining the legal community of Puerto Rico
conscious of the need to preserve the civilian heritage, disregarding individual ideological
preferences. Thus, colonial status has had at least one advantage.27
The role of Puerto Rico law schools and their dedicated civilian academics has also been
crucial in the development of Puerto Rico civil law, training future members of the legal
profession with a high and strong sense of pride for the civil law tradition.28 Finally, the
corrective work of an activist Supreme Court of Puerto Rico at some points in history has also
been crucial in this respect.29 This is particularly ironic since the Supreme Court of Puerto Rico
had been precisely the principal vehicle of transculturation of the legal system in the period that
followed the initiation of American rule in Puerto Rico.30 In fact, this prompted the intervention
of the United States Supreme Court (Holmes, J.) to reproach lower courts for the lack of
deference to the civil law tradition of the Puerto Rican legal system.31

25 For an interdisciplinary approach to the language issue in the Puerto Rican context. see Delgado Cintrón, Historia
de las Luchas por el Idioma Español en Puerto Rico, 54 REV. COL. ABOG. P.R. 7 (1993).
26 Vernon Palmer, Two Worlds in One Two Worlds in One: The genesis of Louisiana's mixed legal system, 1803-
1812, (ed.), LOUISIANA: MICROCOSM, supra, note 22, at 37.
27 See Trías Monge, PUERTO RICO: THE TRIALS OF THE OLDEST COLONY IN THE WORLD (1997). For an
analysis of the historical development of the United States-Puerto Rico relationship through the lens of social legal
theory see Rivera Ramos, THE LEGAL CONSTRUCTION OF IDENTITY: THE JUDICIAL AND SOCIAL
LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO (2001).
28 For the opinion of a distinguished Louisiana law professor see Joseph Dainow, The Method of Legal Development
through Judicial Interpretation in Louisiana and Puerto Rico, 22 REV. JUR. U.P.R. 108, 135 (1953).
29 For a detailed analysis see Fiol Matta, supra, note 5.
30 See Trías Monge, EL CHOQUE DE DOS CULTURAS, supra, note 5, at 101. For a detailed appraisal of the
history of the Supreme Court of Puerto Rico see Rivera Rivera, LA JUSTICIA EN SUS MANOS: Historia del
Tribunal Supremo de Puerto Rico (2007) (Ed. Santillana)
31 See Trías Monge, EL CHOQUE DE DOS CULTURAS, supra, note 5, at 117. (citing the following well-known
passage of Justice Oliver Wendell Holmes: “This court has stated many times the deference due to the understanding
of the local courts upon matters of purely local concern…This is especially true in dealing with the decisions of a
court inheriting and brought up in a different system from that which prevails here. When we contemplate such a
system from the outside, it seems like a wall of stone, every part even with all the others, except so far as our own
local education may lead us to see subordinations to which we are accustomed. But to one brought up within it,
varying emphasis, tacit assumptions, unwritten practices, a thousand influences gained only from life, may give to
the different parts wholly new values that logic and grammar never could have got from the books…Our appellate
jurisdiction is not given for the purpose of remodeling the Spanish-American law according to common-law
conceptions except so far as that law has to bend to the expressed will of the United States”).

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Conceding the divergences mentioned above, I now discuss some important points of
comparison between the recodification experiences of Louisiana and Puerto Rico. Obviously, the
depth of the topic is incompatible with the limits of this article. Consequently I will confine
myself to identifying how the Commission is addressing some of the aspects of the Louisiana
process that have been the object of criticism.32
A.
Enactment Method: Comprehensive Reform vis a vis Partial Revision
The Louisiana civil law system has been the focus of lively academic discussion. First, the so
called “great debate” of the 1930’s on the pureness of the civilian tradition of Louisiana’s legal
system.33 Then, the Pascal-Batiza debate on the sources of the Louisiana Civil Code that
unfolded in the 1970’s.34 Twenty years later a provocative article ignited a vigorous
disagreement on the results of the then half-complete Civil Code revision process by advancing
what have come to be known as the “digest thesis”.35 Puerto Rico has benefited extremely from
this last “great debate” as well as from the abundant scholarly discussion on many other aspects
of the now almost complete Louisiana revision process. Put succinctly, Professor Palmer’s thesis
posits that the Louisiana process is “predominantly a revision without repeal” which has resulted
in Louisiana having two Civil Codes governing concurrently.36 The second part of his thesis
advances that the new Code has the architecture and the methodology of a digest inasmuch as its
structure incorporates the jurisprudence of the old Code, sometimes explicitly but in some other
instances, by attaching it as a “rider”.37

32 See generally A. N. Yiannopoulos, Louisiana Civil Law: A Lost Cause?, 54 TUL. L. REV. 830 (1980);
Yiannopoulos, Requiem for a Civil Code, supra, note 21.
33 This was prompted by LSU professor Gordon Ireland’s conclusion that Louisiana is a common law state, see 11
TUL. L. REV. 585,598 (1937).
34 See, Robert Pascal, A Recent Discovery: A Copy of the “Digest of the Civil Laws” of 1808 with Marginal Source
References in Moreau Lislet's Hand, 26 LA. L. REV. 25 (1965); Rodolfo Batiza, The Louisiana Civil Code of 1808:
Its Actual Sources and Present Relevance, 46 TUL. L. REV. 4 (1971); Robert A. Pascal, Sources of the Digest of
1808: A Reply to Professor Batiza, 46 TUL. L. REV. 603 (1972); Rodolfo Batiza, Sources of the Civil Code of 1808,
Facts and Speculation: A Rejoinder, 46 TUL. L. REV 628 (1972); Joseph M. Sweeney, Tournament of Scholars over
the Sources of the Civil Code of 1808, 46 TUL. L. REV. 585 (1972).
35 Vernon V. Palmer, The Death of a Code - The Birth of a Digest, 63 TUL. L. REV. 221, 224 (1988). Cf. Julio C.
Cueto-Rúa, The Civil Code of Louisiana Is Alive and Well, 64 TUL. L. REV. 147 (1989); Vernon V. Palmer, Revision
of the Code or Regression to a Digest? A Rejoinder to Professor Cueto-Rua, 64 TUL. L. REV. 177 (1989). See also
James Dennis, Julio Cueto-Rúa, David Gruning, Shael Herman, Vernon Palmer, Cynthia Samuel, & A.N.
Yiannopoulos, The Great Debate over the Louisiana Civil Code's Revision, 5 TUL. EUR. & CIV. L.F. 49 (1990). For
an in depth analysis of what an author calls the “Palmerian perspective” see John a. Lovett, Another Great Debate:
The Ambiguous Relationship between the Revised Civil Code and Pre-Revision Jurisprudence as seen through the
Prytania Park Controversy, 48 LOY. L. REV. 615 (2002).

36 Palmer, The Death of a Code, supra, note 35, at 224.
37 Id. Cf. Yiannopoulos, Requiem for a Code, supra, note 21, at 408. (affirming that Palmer was wrong in his
diagnosis of the cause of the death of the Code and advancing that the Code died for other reasons).

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