The Influence of the United States of America’s Legal System on the Legal System of Latin America

By Luisa M. Penagos

Introduction

Historically, the term “legal system” has been used to describe the unity of “rules, procedures, and institutions” [1] that nations around the world have found it necessary to regulate and establish order in their territory. Taking into account the differences in culture and ideology among all countries, the authority for those rules, procedures, and institutions is derived from many sources. Some of them include the people of the nations as the sovereign power, the conventions of constitutions as the supreme law, and finally, a democratic and republican organization composed of executive, legislative, and judiciary powers. Accordingly and based on a comprehensive review of history, this article will provide a brief overview of how the majority of countries in Latin America, have more similarities with the Legal System of the United States, than with the legal systems of their colonizers such as the United Kingdom of Great Britain (UK), Spain, and the Netherlands.  

To accomplish the objective, firstly, this article provides a brief description of the legal systems of the United Kingdom of Great Britain, Portugal, and Spain, focusing on the differences with the United States. Secondly, it will study the main sources of the legal system in the United States. Finally, by examining these differences, this article will show the similarities between North America and Latin America and explore the possible reasons for these countries to follow the United States.  

Description of the United Kingdom of Great Britain, Portugal, and Spain’s Legal Systems 

The United Kingdom of Great Britain, Netherlands, and Spain are founded on a monarchy and a parliamentary democracy as the structure of government. This means that the King or Queen represents the sovereign and serves as the “head” of the state power, a position reached through inheritance [2]. On the other hand, however, the Parliamentary is the unique democratic expression of the people [3]. The high power over the King or Queen, for example, is detailed particularly in Article 2 of Spain’s Constitution, which describes how the King has the power to create and disband courts, propose optional presidential candidates, serve as the commander in chief of the armed forces, and enact laws [4].  Portugal, however, moves away from monarchy as the structure of its government and establishes a democratic and republic government.  In Portugal, the legitimacy lies in the representatives of the people in accordance with the principle of the Constitution as the supreme law [5] because it is an expression of the will of the people.  

Conversely, in contrast to monarchy governments, there is not a strong development nor differentiation concerning the concept of a “supreme law”, the specific role of the constitution is to define the boundaries between the people and the government. This limited role is shown in the absence of a clear provision that defines the powers and scope of the government, as many legal scholars have analyzed this topic as well as the fact UK’s parliament can enact laws without limits [6].  

Description of the United States of America’s Legal System 

The legal system of the United States of America differs from the legal systems of Europe in several important ways. Firstly, it is a republic founded on a structure of presidentialism and federalism formed by the states. There is no authority of a king or queen because the sovereignty and legitimacy of power lie with the people [7]. These aspects are interpreted according to Akhil Reed Amar “as not merely a text but a deed a constituting. We the People do ordain” [8]. The power is between the legislative, executive, and judiciary.  The members who compose the first two branches are chosen by the people, and although Congress has control over the judiciary, it can be determined as a control given by the people who vote for them [9].  

The United States Constitution in comparison with European constitutions studied above, is clear in defining and limiting the government powers through Articles 1, 2, and 3. These Articles and the corresponding sections explain detail by detail the qualifications, requirements, and functions of Congress, the President, and the Courts [10]. This serves to reduce the possibility of an abuse of power against the people who composed the nation, and it is a reflection of the supremacy of the Constitution over any other law, even over the authority of the states.  

Brief Overview of Select Latin American Legal Systems  

Latin American countries were colonized by Europe, mainly by the monarchy government of Spain, however to this day, there are more differences in the form of government and legal system than similarities, despite the significant influence of Europe on the continent.  

The most notable characteristic is that there is no monarchy authority in any of the twenty countries including Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. The form of government in the majority of these countries is republic and presidentialism, being the people and the majoritarian control the justification of power in the government. Similarly, most of these countries declare the sovereignty of the government in the people just like in the United States in the preamble of their constitutions [11]. The form of government established in these countries as republican democracies implies that the powers are divided also in legislative, judicial, and executive, considering the concern about the possible abuse of power. For this reason, each constitution designates certain powers between the branches to maintain a balance between them. Finally, their supreme law is the constitution as an expression of the people over any other law, decree, or resolution that Congress may issue in the future.  

The proximity of Latin American countries to the United States can be attributed to several factors, one key factor is the development of the legal system. By the time Latin American countries gained independence, the United States had already established its legal framework. while Latin American countries were independent mostly after 1836 [12], the United States claimed its independence on July 4th of 1776 [13]. This earlier development of institutions and form of government works for Latin America as a model of successful democratic governance against colonial rules. Also, as a result of the independence the United States experienced earlier development in aspects such as commerce and trade compared to Latin American countries. This implies how these last countries adapt in their system rules that allow an easy cooperation with North America.  

Conclusion

In summary, Latin America, inspired by the successful legal development of the United States, established governments structured as democratic republics, centered around presidentialism. In these systems, power is divided among three branches, each with specific functions aimed at preventing abuses of power and maintaining a system of checks and balances. Most importantly, sovereignty resides with the people, eliminating monarchy and establishing the constitution as the supreme law, superior to any branch of government.

[1] Legal Information Institute (LLI), “Legal Systems” https://www.law.cornell.edu/wex/legal_systems#:~:text=A%20legal%20system%20is%20the,uses%20its%20own%20legal%20system (last visited Feb. 10, 2024).  

[2] Constitución Española [Spanish Constitution] (as promulgated Dec. 27, 1978), art. 57, title II.  

[3] The Role of Monarchy, “The Royal Household”, https://www.royal.uk/role-monarchy (last visited Feb. 10, 2024).

[4] Constitución Española [Spanish Constitution] (as promulgated Dec. 27, 1978), art. 62.  

[5] Constituição da República Portuguesa [Constitution of the Portuguese Republic] (as promulgated Apr. 2, 1976), pmbl, art 3, 6, 18. 

[6] The Constitution Explained, “The Constitution Society”, https://consoc.org.uk/the-constitution-explained/the-uk-constitution/#why-is-the-uk-constitution-different (last visited Jan. 15, 2024).  

[7] U.S. const. pmbl. 

[8] Reed A. Akhil, America’s Constitution: A Biography, (1st ed 2005).  

[9] U.S. const, art. I, § II; art. III, § I. 

[10] Id.  

[11] Some examples of the people’s sovereignty are included in the following constitutions: Political Constitution of the Republic of Costa Rica, art. 9; Constitution of the Republic of El Salvador, preamble; Constitution of the Federative Republic of Brazil, art. I, § I; Political Constitution of the Republic of Colombia, preamble.

[12] The Declaration of Independence 1776, “Office of the Historian” https://history.state.gov/milestones/1776-1783/declaration#:~:text=By%20issuing%20the%20Declaration%20of,political%20connections%20to%20Great%20Britain (last visited Feb. 25, 2024).

[13] Latin Independence Days, “Smithsonian Latino Center”, available at https://latino.si.edu/hhm/latin-independence-days#:~:text=The%20Age%20of%20Revolutions%20began,Rico%20and%20Cuba%2C%20gained%20independence (last visited Feb. 25, 2024).