Tradition and Foreign Influences in the 19th Century Codification of Criminal Law: Dispelling the Myth of the Pervasive French Influence in Europe and Latin America

Abstract

Any civil law student knows that most of provisions in any European or Latin American civil code derive from Roman law, that they were the outcome of a long and gradual scholarly elaboration extending from 12th century glossators to the natural lawyers of the 18th century. However, there is no such consensus about criminal law. The civil law tradition has doubtlessly committed more effort to the scholarly development of private law institutions than to those of public law, privileging civil law over criminal law. The main consequences of this fact are twofold: (i) 19th century criminal jurisprudence is sometimes presented as if had arisen out of the blue, or as if institutions contained in the 19th criminal codes broke with the past or bore no traces of Roman law; and (ii) since criminal codes supposedly broke with the past, the extent and scope of foreign influences—and the French in particular—on the criminal codes in Europe and Latin America are overemphasized. The chapter aims at dispelling this common place, and particularly the myth of the overall French influence in Europe and Latin America.