Wednesday, June 29, 2016

Bocksang Hola on “The Birth of Independent Chile’s Administrative Law”

[We recently noted the publication of El Nacimiento del Derecho Administrativo Patrio de Chile, by Gabriel Bocksang Hola, Profesor de Derecho Administrativo, Facultad de Derecho at the Pontificia Universidad Católica de Chile.  When we learned of the book, we invited Professor Bocksang Hola to discuss it on LHB.  We are very pleased he took us up on our offer.  His remarks appear below.]

Among Latin American scholars, there is a common, almost instinctive idea about the origins of Administrative Law in the territories that had belonged to the Crown of Spain: that they simply copied foreign models after their independence (achieved in the 1810s and 1820s), assuming that, among these, the most influential was the French system. Nevertheless, being myself a Chilean, I had an additional, even more worrying concern. There were grounds to suppose that, in my country, judicial review of Administrative action had disappeared or substantially weakened in the decades following since the revolution of the independence. But the lack of thorough studies in this field left many questions to answer.

I decided to systematically challenge both claims. I suspected that the answer to both matters would be negative, because of the results of a short paper I had published in 2011, titled “The Sources of Chilean Administrative Law before the Civil Code.” On the one hand, this quick inspection had led me to realize that judicial review had been operative during these years, although with some peculiar characteristics. On the other hand, noticing that the rules that judges still applied in the 1840s and 1850s were mostly derived from the ancient Spanish law, such as the Partidas of 1265, or more recent compilations, as the Novísima Recopilación of 1805, I had understood that it was impossible that the Administrative Law régime in Chile would have been the mere product of a transplant of French law–or any other law alien to the Hispanic tradition.

Realizing that the influence of this tradition over independent Chile, and its dialogue with foreign influences as well, would be more obviously noticeable before judicial reception of Chilean codification, I decided to perform an in-depth study of the period extending from the unconscious beginnings of the Independence (1810) until the beginning of the widespread application of the Chilean Civil Code (around 1860).

This was a particularly troubled period. Other than the War of Independence (mainly 1813-1818 but really extended until 1826, with the conquest of Chiloé), Chile faced a period usually described as "anarchy" (1823-1828), three important civil wars or revolutions (1829-1830, 1851, 1859), and an international war (against the Peru-Bolivian confederation, 1836-1839). Moreover, several constitutional texts were enacted during this period: 1811, 1812, 1814, 1818, 1822, 1823 (two this year), 1828, and 1833, this last one being probably the most influential in Chile’s history.

The task of rediscovering the roots of Chilean Administrative Law was a particularly motivating one, considering that no author had explored thoroughly the sources available from this period. Even though Santiago Prado’s Derecho Administrativo Chileno, the first book about Administrative Law to be published in Chile (1859), corresponded to this period, it suffered from various sorts of problems. Besides being a sort of reproduction of the Spanish Manuel Colmeiro’s Derecho Administrativo Español (1850)–therefore, distorting Chilean institutions–it limited its scope to a mere exposition about the main statutes currently existing in the country in the year of its publication. No explanation about the evolution of Chilean law during those 49 years, and–most of all–no judicial decisions quoted. As a result, this new analysis needed the unearthing of hundreds of judicial decisions, many of them unpublished, as well as recreating the evolution of norms related to Administrative Law during that half century.

The Chilean Administrative Law of the period 1810-1860 revealed itself as a wide treasure of surprises, a very particular mixture of tradition and innovation. It is not an exaggeration to describe it as a specific régime, influenced by other countries but strongly rooted in Hispanic law.

This attachment to tradition is manifest in administrative organization, where the key elements expressed a remarkable continuity with the old order. The strong figure of the Director Supremo and, since 1826, the Presidente de la República (playing a central role until our days), was configured as a replacement of the image of the King of Spain and of the Governor of Chile as well. The main administrative controlling authority, the Contador Mayor, was maintained under the republican régime (and subsists even today, under the name of Contralor General de la República); whereas territorial distribution of powers was basically transplanted from the one existing under the Spanish rule of the Bourbons (e.g., the Intendentes as chiefs of the provinces). This continuity was fundamental to the success of Chile as the most stable country among the young Hispanic republics.

This stability led to a rapid recognition of key principles of Chilean public law lasting well into the 21st century.

A good example comes from the recognition of the principle of legality. It was assured by constructing a very strict organization of explicitly delegated Administrative powers –perhaps as strict as it could be found in the Western world. This character produced several repercussions, mainly since 1833, such as the exclusion of “extraordinary circumstances” as excuses to infringe the Rule of Law, and voidness as a consequence of the infringement of the Law by administrative action.

Also, liability for damages produced by the State of Chile was declared by tribunals. Although it suffered from restrictions, at the end of the period it was sophisticated enough so to solve the most complex problems derived from the war of the Independence: confiscations applied on civilians having supported the King of Spain and emigrated during the revolution (euphemistically called “secuestros de bienes”). Many of those royalists finally received their property back, or at least received an indemnity in compensation for it, during this period.

New aspects of Administrative activity were successfully regulated and judged. The (moderate) development of civil service and agencies, free(er) trade, and the impulse granted to Administrative contracts were particularly interesting.

A good part of this was possible thanks to the role played by judges, which has been generally overlooked by Chilean historiography. This research shows that they were decisive for consolidating a successful political transition and for reducing the negative impact of inner and outer turbulences. Besides, the early choice in 1823-1824 of discarding a duality of general jurisdictions–ordinary and administrative–and thus promoting a single general judicial power, was a factor that reinforced the feeling that the Administration was effectively subject to control.

As a result of all these consideration–and others developed in this book–it can be said that Chile was able to craft during these fifty years an operative Administrative Law which was not a mere copy of those being forged simultaneously in other Western countries, albeit it shared with these many important concerns. In El nacimiento del Derecho administrativo patrio de Chile (1810-1860) I intend to tell how this Administrative Law was vital for consolidating the young Republic of Chile, as well as for establishing what was perhaps the most important Rule of Law in the nineteenth-century Hispanic world.

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