The Civil Law Tradition and Constitutionalism in Twentieth-Century Mexico: The Legacy of Emilio Rabasa

CHARLES A. HALE

Constitutionalism in Mexico, indeed in Latin America generally, has always posed a problem for interpreters, especially for Anglo-American interpreters. It is true that adherence to a written constitution and to constitutional order has been central to Mexican political liberalism since independence. As a state-building philosophy, liberalism has functioned both as an ideology, in combat with inherited colonial and Hispanic patterns of government, and as an all-embracing myth serving to unify contending self-defined liberal factions. In both instances, liberals fought for, debated, and on occasion were able to implement basic Western constitutional principles, namely, the preservation of individual liberty and legal equality within a representative government whose powers were set out and limited in the articles of a written document. The problem of interpretation arises because of a widespread view that constitutional government in Mexico has been ineffective or, at best, that the struggle to achieve it has been arduous.	1
In seeking explanations for Mexico's problematic constitutionalism, both Mexican and foreign interpreters have pointed first to the defects of the colonial tradition, based on a patrimonial and bureaucratic regime. This has allowed little opportunity for self-government or the development of institutions that could limit royal authority. A standard way of characterizing the colonial legal system has been to emphasize the "breach between the written law and its observance," which became a deeply ingrained cultural pattern. The breakup of the colonial system at independence brought charismatic caudillo leadership, both on the regional and the national level. Later nineteenth-century efforts to recreate a central state produced the authoritarian presidency, which might maintain peace and order, but at the expense of the formation of effective representative institutions. The twentieth century saw revolutionary upheaval and social change, a transformation that ultimately allowed Mexico to avoid the total collapse of constitutionalism experienced by Argentina, Brazil, Chile, and Uruguay in recent decades. Yet, with the Revolution, earlier governmental patterns were reproduced, culminating in one-party centralized rule, legislatures that were subservient to all-powerful executives, and a weak judicial system, even at the level of the Supreme Court. So goes (in perhaps less stereotyped and over-simplified fashion) much of the interpretation of Mexico's constitutional experience.	2
Moreover, the North American approach to constitutionalism in Mexico is especially fraught with peril. The interpreter knows that Mexico adopted in form much of the United States Constitution; and however critical, he or she usually begins with an inherent pride in the document and its implemention over the years. Thus there is the inevitable tendency, explicitly or implicitly, to frame the problem as the "failure" of constitutionalism in Mexico (or Latin America) and its "success" in the United States. 1 Then, in seeking explanations, the interpreter tends to fall back on the traditional cultural arguments, leading ultimately to implicit ethnocentric generalizations about Mexican "character." To avoid such pitfalls, I suspect that many foreign historians avoid the subject of Mexican constitutionalism altogether. The purpose of this article is to attack the problem directly, whatever the perils, in hopes of offering an alternative way of understanding Mexico's constitutional experience, one that relates that experience to the legal tradition inherited by Mexico.	3
Let us leave aside momentarily the question of constitutional effectiveness and identify briefly how the constitutional issue was actually framed and debated within the nineteenth-century liberal project. In general, constitutionalism in Mexico took two forms, the doctrinaire and the historical or traditional. The doctrinaire tendency reflected a belief that rigid adherence to or imposition of the precepts of the written document, however general or abstract, could guarantee the realization of constitutional order. Doctrinaire constitutionalists often took a radical and democratic political stand, believing it was necessary to change society to conform to the constitution. Historical or traditional constitutionalists, arguing that a constitution should reflect social and historical reality, tried to change precepts they found abstract and unrealizable in Mexico. They tended to be politically moderate or conservative and socially elitist; historical constitutionalists called for "strong government," at the same time resisting personal presidential power. 2	4
Historical constitutionalism in Mexico drew its inspiration from a current of French political thought that had its origins in Montesquieu and was put forth in the nineteenth century by Benjamin Constant, Alexis de Tocqueville, and Edouard de Laboulaye. French constitutionalists idealized Anglo-American institutions and made their point of departure a critique of the French Revolution and the egalitarian revolutionary tradition. By the mid-nineteenth century French historical constitutionalism was also receiving major influence from the German historical school of law, whose key figure was Frederic Charles de Savigny. Savigny's highly influential manifesto of 1814 rejected the tendency toward French-inspired legal codification in Germany and posited "the spirit of the nation" as the only source for all law. Edouard de Laboulaye, who wrote an appreciation of Savigny in 1842, was to became an important guide for Mexican historical constitutionalists of the later nineteenth-century. 3	5
The principal debates between doctrinaire and historical constitutionalists focused on the democratic and egalitarian provisions of the Constitution of 1857—the rights of man, universal male suffrage, a single chamber legislature, parliamentary government, a weakened executive, and popular election of judges. The debates emerged first in 1878 when historical constitutionalists, led by Justo Sierra and his colleagues in the newspaper La Libertad, attacked the "dogma of equality" that permeated the Constitution and called for conservative reforms. They did so in the name of "scientific politics," since by the 1870s the new scientific philosophy of positivism had melded with historical constitutionalism. They called themselves "new" or "conservative" liberals as opposed to "old" liberals such as José María Vigil and Ignacio M. Altamirano, doctrinaire constitutionalists who defended the democratic and egalitarian provisions of the 1857 document.	6
The debate resurfaced in 1893 over an effort by the historical constitutionalists, again led by Justo Sierra, to reform the Constitution to make judges irremovable, instead of being popularly and periodically elected, and thus subject to political manipulation. The measure was designed to limit the increasingly personal power of President Porfirio Díaz. They were again opposed by doctrinaire defenders of the pure Constitution (who did not necessarily support the personal power of Díaz). In the course of the debate the historical constitutionalists, or advocates of scientific politics, came to be labeled "científicos" and the doctrinaire constitutionalists "Jacobins," labels that became embedded in the political rhetoric of the next thirty years. 4	7
The nineteenth-century current of historical constitutionalism, infused with scientific politics or positivism, was perpetuated after 1906 by the jurist and historian Emilio Rabasa, a latter-day científico who would undoubtedly have been a party to the debate in 1893, had he not been serving at the time as governor of Chiapas. With the Revolution of 1910 and the postrevolutionary years of the 1920s, the constitutional thought of Emilio Rabasa becomes critical, not only because of his great influence as a theorist, teacher, and educational leader, but also because of intriguing ambiguities in his thought that provide an insight into the problem of Mexican constitutionalism.	8
However, before discussing Rabasa's thought, let us explore the general relationship between constitutionalism and the civil law tradition that Latin America inherited. The relationship is occasionally treated by legal scholars, though rarely by historians, especially by historians of and in Latin America. We should note at the outset the problem of terminology and translation. The term "civil law tradition" is used exclusively by lawyers and scholars of the English-speaking world to distinguish their "common law" systems from legal systems that were derived from Rome and later from continental Europe, especially from Germany and, in Latin America, from France. However, since "civil law" (i.e., el derecho [le droit] civil) in continental Europe refers only to private law, as opposed to criminal, commercial, and public law, there is no obvious translation of the term into romance languages: I have seen "civil law tradition" rendered as "la tradición jurídica romano-canónica," "la tradición del derecho continental europeo," "la famille romano-germanique," and even (in despair perhaps), "la tradizione di civil law." This problem of translation may reflect the fact that "civilians" (as they are called in English) tend to regard their tradition exclusively as "the Law" (el derecho) and are generally less interested in outside comparison than are their common law colleagues. This is certainly the case in Mexico.	9
Be that as it may, the notion of legal "tradition" goes beyond identifying legal rules and the details of a legal system, and, in the words of John Henry Merryman, "puts the legal system into cultural perspective"; it is concerned with "deeply rooted, historically conditioned attitudes" about the law, its organization, its teaching, and its implementation. As a way of understanding Mexican constitutionalism, an emphasis on the dictates of its legal tradition, while admittedly cultural, allows us to focus comparatively on the law itself and thus perhaps to avoid the interpretative pitfalls referred to earlier. 5	10
There are four interrelated characteristics of the civil law tradition that set it apart from the common law tradition and that are particularly relevant to our inquiry: one, a depreciation of judges and a resistance to, even a hostility toward, judge-made law; two, the theoretical corollary that law emanates from the Legislator, which found its modern expression in the impulse toward legal codification, especially in the French Civil Code of 1804; three, a strict adherence to the separation of powers in government, conceived of differently from the so-called separation of powers in the United States; four, a deeply held distinction between private and public law, a distinction that has been generally unimportant in common law jurisdictions.	11
The animus toward judges in the modern civil law world arose from the reaction in revolutionary France against the great legal power and privileges acquired by the judiciary during the Old Regime. Judicial authority was one target of the egalitarian fervor that impelled the assemblies of 1789 and 1790 to eliminate "feudalism." By the decree of August 16, 1790, judges were reduced to technicians who would simply apply the laws and refer back to the legislature in case of doubt. By the same decree, "the civil laws shall be reviewed and reformed by the legislatures; and a general code of laws, simple, clear, and in harmony with the Constitution, shall be drafted." 6 Thus came the ideological impulse, not only to eliminate the interpretative role of judges, but also to throw out the accumulation of past legislation in favor of a code that would conform to nature and to the Rights of Man. It was the ideology driving codification, the utopian idea of replacing the laws of the past, that distinguished codification in the civil law tradition from the proliferation of codes that exist, for example, in the United States. 7	12
The French Constituent Assembly also decreed on August 16 that "the courts may not take any part, directly or indirectly, in the exercise of the legislative power"; moreover, "judicial functions are distinct, and shall always remain separate, from administrative functions." The revolutionaries found support for their distrust of judges and their determination to separate the powers of government in the ideas of Montesquieu, who had asserted in The Spirit of the Laws (1748) that the judge "is the mouth that pronounces the words of the law." For him, judges were "inanimate beings." The "power to judge," he added, "becomes ... invisible and nul." 8 In addition, constitution-makers of the revolutionary era could not conceive of a republican government based on the sovereignty of the people becoming oppressive. As long as a popular legislature applied laws equally to all citizens, no one could claim being deprived of individual rights. Since threats to individual liberty could only come from citizens themselves, judicial action came to be regarded as only complementary, never opposed, to legislative action. 9 Thus, from Montesquieu and from the revolutionary impulse, every French constitution since 1791 has been based on the principle of the strict separation of powers, a principle that for French constitutional scholars has become a dogma. 10	13
The first three characteristics of the civil law tradition bear directly on the fourth, the distinction made between private and public law. 11 The basis for the distinction is ancient; the jus civile of the Romans applied to relations between individuals, while public law was left to the sovereign. The first was the subject of elaborate scholarly study, commentary, and refinement by medieval jurists, the second was left undeveloped until the rise of the sovereign state. Public law emerged in modern times from theorizing about government in the seventeenth- and eighteenth-century monarchies, as it interacted with the liberal and egalitarian ideas of the American and French Revolutions. Nonetheless, in European civil law systems, where scholars were the ultimate heroes of the law, the two major branches of public law, constitutional and administrative, aroused far less interest than did the traditional civil or private law. In fact, it is often said that in France constitutional law is still regarded by many jurists as political science. In postrevolutionary France, judges were restricted to decisions based on facts that pertained to articles of the Civil Code. 12 If they misapplied the law, their actions could be appealed to the Tribunal of Cassation, established in 1790 as a nonjudicial body "in the service of the legislature" (au prés du corps legislatif) to casser (quash or annul) procedurally incorrect judicial decisions. The tribunal gradually took on more interpretative (essentially judicial) functions and was called a "court," but in accord with the doctrine of separation of powers, these functions did not include public law. The High Court of Cassation did not interpret the constitution, and thus it never became a supreme court in the U.S. sense, nor did any other such court develop in France. 13	14
Finally, we arrive at the heart of our inquiry, the problem of Mexican constitutionalism. Modern Mexico lies squarely within the civil law world. Its Civil Code of 1870, revised in 1884 and again in 1928, was drawn from the French model (with modifications influenced by the Spanish Code of 1840), as were its procedural, commercial, and criminal codes. I would argue, furthermore, that the assumptions revealed in the four above-mentioned characteristics of the civil law tradition guided the thought of Mexican jurists, teachers, and practitioners in the nineteenth century and may continue to do so today. Yet, Mexico adopted in its several constitutions many forms from the United States, a natural tendency for another former European colony in the New World, which achieved independence and established a republic more than forty years later than its northern neighbor. While the United States became a kind of political and social utopia for Mexican liberals of the nineteenth century (despite the war of 1847), they consistently were drawn intellectually to continental Europe, that is, to France and Spain, whose societies and institutions were more analogous to their own. What was true in political and social thought was true in legal thought as well. In the constitutional realm, the difference was often between North American forms and European substance. Perhaps the most notable example of this anomaly appears in Mexico's Supreme Court and its process of judicial review. 14 The implications of this anomaly for understanding Mexican constitutionalism can be clearly seen in the ideas of Emilio Rabasa and his followers.	15
In order to focus on Rabasa's treatment of Mexico's Supreme Court, we must pass over important aspects of his thought and career, all of which contributed to his influence and to his notoriety in post-1910 Mexico. He is known as the pioneer of the Mexican realist novel, though he left literature permanently after publishing five short works from 1887 to 1891. As a historian, he not only attacked what he regarded as the fallacies of the Constitution of 1857, but he also asserted that dictatorship was the inevitable result of sociological laws, an argument that was regarded mainly as a defense of the Díaz regime (1877-1911). As a leader of the strongly pro-Díaz juridical establishment of the capital, Rabasa was the principal founder of the Escuela Libre de Derecho, which broke away from the official Escuela Nacional de Jurisprudencia in 1912, in reaction against intervention by the revolutionary government of Francisco I. Madero (1911-13). Forced into exile in 1913 because of his identification with the counterrevolutionary regime of Victoriano Huerta, Rabasa nonetheless exerted through his writings and teachings a major influence on the formation of the Constitution of 1917, the magna carta of the Revolution. He returned from the United States in 1920 to direct the Escuela Libre, and he became the revered master of constitutional law. Thus Rabasa exemplifies in a striking fashion intellectual continuity from the Old Regime to the New, from the Porfiriato to the Revolution.	16
Though Rabasa is often regarded simply as an apologist for Porfirio Díaz, his political interpretation was in fact more complex. He concluded La Constitución y la dictadura (1912) with the statement that "the dictators have completed their task" and "the constitutional stage must follow." 15 He envisioned an era of "democratic oligarchy," based principally on a strong supreme court of permanent magistrates, which would defend the Constitution against the excesses of both personal dictatorship and a popular legislature. This serene and optimistic vision, put forth on the eve of revolutionary turmoil, was only strengthened by his years in the United States. 16 There Rabasa immersed himself in the literature of Anglo-American constitutional law, as revealed in his elaborate comparative and historical treatise of 1919 on judicial review, El Juicio constitucional, a work he dedicated to the law students of Mexico. He stated at the outset that the purpose of the work was to set forth "the governmental system in which the stability of political institutions is based on the intervention of judges." 17 In short, he was suggesting that greater attention to the North American system could enhance the Mexican defense of the Constitution and perhaps bring about the establishment of "democratic oligarchy."	17
It is difficult and unprofitable to separate Rabasa the historian from Rabasa the jurist, his general interpretation of Mexico's political and constitutional history from his technical and detailed legal study. In fact, it is this combination in Rabasa's works that makes him such a unique and important figure. As Cosío Villegas observed, though disagreeing fundamentally with his historical interpretation, "Rabasa knew history and he knew law," something "that is rare in Mexico." 18 In El Artículo 14 (1906), we can find the basis for his later general critique of the Constitution of 1857. El Artículo 14 was a painstaking discussion of the origin, formulation, and wording of Articles 14, 101, 102, and draft Article 26. The Constitution, he said, contained a contradiction between clearly and precisely expressed articles (i.e., 101 and 102) protecting individual rights and abstract, vague, and "metaphysical" declarations, to wit in Article 1: "The Mexican people recognize that the rights of man are the base and object of social institutions." Such a declaration, argued Rabasa, is false "as a scientific principle" and invalid as a commitment because the Constituent Congress was authorized "to constitute the nation, but not to establish its philosophic creed." 19 He went on to acknowledge that the constitution-makers were wise enough to put aside "logic" in much of the Constitution for what was practical and "genuinely juridical," such as Articles 101 and 102, which established the judicial defense of individual rights, the juicio de amparo. His sense of history provided a context for his searching analysis of amparo, which gave it a broader nontechnical significance.	18
In much of El Juicio constitucional Rabasa idealized Anglo-American constitutional development in comparison to that of the Latin American nations. He said that the latter's constitutions were "imposed," in contrast to the "spontaneous" and unwritten English constitution and the North American constitution, which was "proposed," then "ratified" by the sovereign people. The emigrants to North America, being Englishmen, carried the common law in their baggage; it was their birthright "like language, domestic customs, and the spirit of the race." In drawing up the Constitution of 1787, the delegates were well aware of theory, which they drew from Montesquieu, yet they were sensible and deliberate, keeping invention within limits. Since the baggage of emigrant Spaniards was the recopilación de leyes, which gave them little to build upon, at independence they turned to abstract theories "condensed into revolutionary slogans." Whereas the North Americans used "science" (i.e., rationalism) as "an aid to empiricism in establishing the principles of the new freedom," the Latin Americans turned exclusively to science and invention, adopting principles presumably proven already in North America. 20	19
Rabasa, of course, did not regard the adoption of such principles as necessarily negative. For example, he lauded Mariano Otero as the pioneer of Mexican judicial review, who in the Acta de Reformas of 1847 "followed the path of the American constitution, found there the formula for making individual guarantees effective, and established the juicio de amparo in a masterly fashion." 21 Otero's project ultimately became Articles 101 and 102, the "magnum opus" of the 1857 constitution-makers, by which the federal courts (in effect the Supreme Court) would resolve all controversies arising from violation of indvidual constitutional guarantees. 22 A critical feature of the amparo, as specified in Article 102, was that all such suits must be initiated by the offended (agraviada) party, that is, by an individual.	20
Rabasa's trenchant critique of Mexico's judicial review process did not center on the juicio de amparo itself. Instead, he focused on the effect of Article 14 of the Constitution on that process. The article prohibited retroactive laws; it also stated that "no one can be judged or sentenced except by laws made prior to the fact and exactly applied to it by the tribunal that had previously enacted the law." Rabasa had two basic objections to the article. The first was that the phrase "judged and sentenced" essentially shifted protection for the individual from abuses by the government (el poder público) to protection "from abuses by bad judges." 23 His second objection was to the word "exactly," which he said had been misinterpreted as "literally," thus encouraging excessive litigation by individuals against laws that might be misapplied. Rabasa argued that this article was a carelessly formulated version of the "due process" clause of the Fifth Amendment to the U.S. Constitution. By not making a distinction between "ordinary laws" and "violations of individual [constitutional] guarantees," Rabasa claimed that the effectiveness of the juicio de amparo was undermined. Thus, by 1905 the Supreme Court was faced with a total overload of amparo cases. 24 In effect, a large part of its activity was devoted to cassation, that is, to examining purportedly incorrect legal procedures by the lower courts. 25 Rabasa's campaign to eliminate or reform Article 14 was in vain, for it emerged essentially intact in the Constitution of 1917; and the Court's backlog continued.	21
Despite his critique of the judicial mischief inflicted by Article 14, Rabasa remained optimistic in his belief that the judicial defense of the Constitution could be instituted effectively in Mexico. 26 And yet Rabasa's argument was nuanced, complex, and even contradictory, because of the clash within it between his admiration for the Anglo-American system and key assumptions from the civil law tradition. In the conclusion of El Juicio constitucional, he wondered, somewhat oddly perhaps for an antirevolutionary social conservative, whether the U.S. judiciary could adapt to social change; for example, it had overturned labor legislation regulating wages, hours, and union organization. Is the U.S. Supreme Court, he asked, incompatible with the evolution of ideas, inflexible and old-fashioned, as charged by laboring groups? He even acknowledged the popular complaint in the United States that "the American government is an oligarchy of the robe"; and he repeated the critical phrase used by French theorists, "legislation by judges," which he saw as a serious threat in the United States to "legislation by legislators." 27	22
Rabasa stated with pride that legislation by judges could never take hold in Mexico. While Mexico did not enjoy the authority of precedent, one of the great advantages of the common law, at the same time it was spared "jurisprudential petrification," the danger that judicial supremacy could be "converted into a dam to hold back the currents of national life." 28 He was confident that the threat of judge-made law would be nullified by Mexico's legal doctrines, its scholarly traditions, and its conception of justice, "which awaken and enliven in the Latin ideal a spiritual liberty which we will never lay aside." Rabasa's study of and direct exposure to the U.S. legal system during his years of exile did not make him a convert. He still adhered to the fundamentals of the civil law tradition and showed, as on this occasion, that he could even idealize them, all of which paradoxically made him appear as a jurist who would be sympathetic to the revolutionary legislation being enacted in his own country.	23
Rabasa's ambivalence in the face of the two divergent legal traditions was also revealed in his response to the much-debated theoretical issue: was the juridical branch of government simply a "department" or a true "power"? Was the administration of justice essentially nonpolitical or did it have a political function? Following Montesquieu and the French doctrine of the rigid separation of powers, he initially took the first position in 1912, then in 1921 shifted decisively to the second. At first he argued that since the administration of justice was concerned only with the protection of individual rights, it was not dependent on the "will of the nation" and thus not a power as such. He cited Montesquieu's famous phrase on the nullity of the judicial power, interpreting it to mean only that the function of the judiciary was essentially different from that of the legislature or executive. 29 From his exposure to the North American system, he later realized by 1919 that in practical terms it should be designated a "power" as in the United States, in order to strengthen its role as defender of the Constitution. The constitution-makers of 1917 had taken this position, partly in reaction to Rabasa's earlier argument. 30 Rabasa's basic conviction that Mexico's constitutional system needed a strong supreme court of irremovable judges, whether he termed it a "department" or a "power," remained constant during the decade of turbulent political change. His problem was how to implement this conviction within the dictates of the civil law tradition.	24
By 1921, on his return to Mexico, Rabasa again confronted the theoretical issue of "department" versus "power" in light of the continued backlog of amparo cases in the Supreme Court and a pending measure to divide the Court into multiple chambers (salas) in order to expedite cases and meet the problem. In a dramatic speech to an overflow crowd, he reminded his juridical audience that "the Supreme Court is not a tribunal; it is a supreme power of the nation." As such, though it does not command, "it restrains those who do command." He emphasized that its function "is always exclusively political, as the regulating element of governmental organization." He saw the measure to divide the court as disastrous, leading to anarchy and dissolution. 31	25
The dramatic point of the speech came when he proposed, in addition to the Supreme Court, the creation of a court of cassation on the French model, a proposal replete with references to French theorists, French legal history, and lavish praise for French jurisprudence, references and praise that were never explicit in his previous writings. His words bear quoting at length:	26
Above the monument of the Napoleonic code [was constructed] the monument of French jurisprudence, the wisest and perhaps the most respectable in the world, the rich source turned to by the legislators and jurisconsults of nations that derive their law from the Roman trunk. The product of this work [that is, of the Court of Cassation] is a general system of the highest justice, contributed to by a body of judges equaled by no nation, and by a scientific and judicious bar, the pride of the world's most profound and transcendental profession. 32
The French Court of Cassation, he argued, with its division into civil, penal, and procedural (la procedencia del recurso) chambers, can dispatch its business with rigor and clarity and avoid the "perversion of the law" present in the Mexican system. It "shows us the admirable example of a revisionary tribunal within the central government to watch over the exact application of ordinary legislation." The union, as in Mexico, of both judicial functions, cassation and defense of constitutional rights, in a single body, "results in a monstrous institution." 33
By creating a court of cassation, he concluded, the Supreme Court could be made a true power of government, essentially as it is in the U.S.; and Mexico's system of judicial review, the juicio de amparo, could be freed to function as it should. The speech was in effect Emilio Rabasa's swan song, for he wrote little more on this subject before his death in 1930. It was his final effort to graft North American judicial review onto the civil law trunk and thus to establish a vigorous constitutionalism in Mexico. The effort was in vain. His proposal aroused some debate at the time; but except for his disciple Manuel Herrera y Lasso, whose influence was limited, it has gone virtually unnoticed since.	27
The legacy of Emilio Rabasa can be seen both in the experience of the institution he helped establish and in the ideas of his successors. The survival of the Escuela Libre de Derecho between its founding in 1912 and the official recognition of its degrees in 1930 is one of the intriguing subjects of the revolutionary years. Although the overt justification for the school rested on the guarantee of "freedom of instruction," as stated in Article 3 of the Constitution of 1857, its científico, anti-Madero, and ultimately pro-Huerta orientation was clear. In short, the Escuela Libre was a product of the major political conflicts of the Madero presidency. The school rapidly gained prestige, despite the political sympathies of its founders, in part because they were the country's leading lawyers and jurists. The antagonism between the Escuela Libre and the official Escuela Nacional de Jurisprudencia faded after the fall of the counterrevolutionary regime of Victoriano Huerta in July 1914 and the rise of Venustiano Carranza. Carranza was able to reconcile the political divisions within the university world of the capital, including the juridical establishment. 34 It is significant that José Natividad Macías, a founding professor of the Escuela Libre and a follower of Rabasa, was an author of the draft constitution Carranza presented to the Constituent Congress at Querétaro in December 1916.	28
After 1920, the Escuela Libre remained vulnerable, both because its leaders Emilio Rabasa and Miguel S. Macedo were ex-científicos, but also because many of its professors and students were strong Catholics. In the harsh political atmosphere of the 1920s, the school's survival strategy was to become apolitical and to preach "tolerance," that is, to avoid entanglement in the church-state conflict. Rabasa set the tone for this strategy. In his courses he did reiterate earlier critical and comparative themes, but in a less vigorous form. He continued to attack the contemporary juicio de amparo as "notoriously defective and corrupting," referring to his earlier proposal to create a court of cassation on the French model. He criticized the failure of the Constituent Congress of 1916-17 to establish full irremovability of judges. And he pointed up differences between the U.S. emphasis on judicial precedent and interpretation and the French emphasis on scholarly analysis of the law. But Rabasa avoided analyzing in depth the 1917 Constitution, especially the radical Articles 27 on property and 123 on labor. As for Articles 3 and 130, on education and the church, he declined to "touch on religious matters, which I always omit in this class." 35	29
The survival strategy was successful, and the school's future was secured when two of its early students, Emilio Portes Gil and Ezequiel Padilla, became president of the republic and minister of education respectively in 1929. With the recognition of its degrees the school was able to withstand continuing hostile pressures during the era of Lázaro Cárdenas. But in so doing, the critical dimension of Rabasa's legacy declined, law and history diverged, and the juridical establishment made its peace with the revolutionary state.	30
The divergence of law and critical history and the problems of the Rabasian legacy can also be seen in bits of evidence drawn from ideas of his successors. It appears that with the Revolution, interest in comparative legal systems faded in Mexico, though Rabasa's son, Oscar, attempted vainly to keep it alive. While in exile with his father in the United States, he received a law degree from the University of Pennsylvania in 1917, which made him unique among Mexican lawyers. On his return from the United States, he sought to perpetuate his father's interests when he vigorously opposed an amparo case that he said involved a strictly political (and nonconstitutional) conflict between the state of Veracruz and the federal government. 36 He maintained that since the juicio de amparo was an adaptation of the Anglo-American system of judicial review to the Mexican milieu, it would be quite natural in such a case for jurists to study the decisions of the U.S. Supreme Court. He then berated his colleagues for not doing so. When a juridical problem in civil, commercial, or penal law arises, he said, they "turn to its source or origin, going back if the case demands it to Roman law, or perhaps to French or Spanish law." What a pity, he added, that "we don't see in their libraries, alongside the magnificent French treatises, a single complete work on U.S. constitutional law, or a collection of Supreme Court decisions." While French theorists are extensively consulted in a civil or criminal case, "an American author is never consulted when a constitutional issue arises." Moreover, if Mexican jurists had studied U.S. constitutional law, they could have adapted the juicio de amparo more perfectly to their needs, instead of allowing it to reach "its present state of disintegration." 37 Rabasa then went on to review in detail the U.S. Supreme court cases that bore upon the amparo suit in question.	31
Oscar Rabasa's polemic aroused little response, but it is also evident that he himself was determined to fill the void, which he did two decades later with the publication of Mexico's only important treatise on North American law. Once again he took the occasion to lament the ignorance in Mexico of U.S. law, both because few could read Anglo-American works in English, but also because there did not exist a single complete translation of such a work into Spanish. His challenge, as he saw it, was "to figure out a system which in its formal aspect, in its juridical forms, in its terms and procedures, differs radically from Mexican law." 38 In addition to Rabasa's work, there was established in 1940 the Instituto Mexicano de Derecho Comparado and in 1948 its journal devoted to comparative law. However, the journal scarcely acknowledged Oscar Rabasa's study and to date has given little attention to topics from the common law world. Hector Fix Zamudio, longtime director of the Sección de Derecho Comparado of the Instituto de Investigaciones Jurídicas, has clearly given some attention to comparative topics, but he admitted recently that the teaching of the subject was hindered by the lack of any appropriate texts. 39 It is perhaps too early to tell whether the era of NAFTA will bring a change in the situation.	32
The fate of the Rabasian legacy is also revealed in the experience of "his most distinguished disciple," Manuel Herrera y Lasso (1890-1967). 40 Herrera y Lasso was one of the student rebels of 1912 whose actions led to the founding of the Escuela Libre de Derecho, and he was closely associated with the school throughout his career. He taught sociology at various times from 1914 to 1927 and became Rabasa's successor to the chair of constitutional law in 1930. A fervent Catholic, Herrera sought exile in Cuba during the Cristero upheaval of 1927-29; and in 1939 he became a founder of the conservative Partido de Acción Nacional and a subsequent PAN activist. Despite his uneasy relationship with the revolutionary state, Herrera was tolerated and even recruited to serve as consultant to three presidents from 1947 to 1964. Though he never published a major juridical study, he was celebrated for his teaching at the Escuela Libre and respected within the juridical establishment for his eloquence and his numerous occasional commentaries on constitutional issues, collected and published in three separate volumes from 1940 to 1986. 41	33
Though Herrera y Lasso took issue with Rabasa's anticlericalism and his narrow construction of individual rights, he remained faithful to the core issues of Rabasa's constitutional thought. He perpetuated Rabasa's attacks on the contemporary amparo procedure, and he was the sole champion of Rabasa's 1921 proposal for the establishment of a court of cassation to separate appeals based on ordinary legislation from amparo suits on bona fide constitutional issues. He continued to pursue the cause of judicial irremovability and criticized severely the half measures taken to restructure the Supreme Court after 1917. 42 He argued eloquently, though unsuccessfully, that a statue be erected to Emilio Rabasa in the Supreme Court building to accompany those honoring the other three great jurists who had guided the evolution of the juicio de amparo. 43 However, Manuel Herrera y Lasso's Catholicism, his PAN militancy, and his failure to publish a notable juridical treatise reduced his influence as a perpetuator of Rabasa's thought within the postrevolutionary establishment.	34
Not only did the Revolution undercut the Rabasian tendency toward historical and comparative constitutionalism, but it also injected new social assumptions into the juridical process. Although there is some basis for them in Rabasa's sociological approach to history and in his critique of the excessively individualistic decisions of the U. S. Supreme Court, Mexican legal thought after 1920 moved in new social directions. The ideas of Felipe Tena Ramírez, Rabasa student, eminent constitutionalist, and Supreme Court President were symptomatic of this change. Tena Ramírez studied at the Escuela Libre de Derecho in the mid 1920s, presenting in 1928 a thesis on the shift in the function of law from individualism to socialism. That same year a revision of the Civil Code appeared, specifically construing property "as a social function and not as a subjective right." The influence of the French theorist Leon Duguit (1859-1928), an author also much studied at the Escuela Libre during the 1920s, was apparent in this new formulation. 44 Duguit argued the historical decline of two opposing abstract theories, the idea of "the sovereign right of the state" and the "idea of a natural inalienable and imprescriptible right of the individual personality," both giving way to a "public service" state, that is, public law guided by realistic social concerns. 45 The constitutional thought of Tena Ramírez revealed clear signs of these new tendencies, as well as certain older Rabasian themes. The interaction of the two was subtle and not always in conflict.	35
Felipe Tena Ramírez departed from Rabasa when he justified some years later the right of the Mexican people to modify by violent means "the constitutional norms of the Mexican state." Following a detailed discussion of the political and constitutional events of the revolutionary decade, he concluded that revolution can have a moral if not a juridical basis. In short, "the right to revolution," he said, "is converted into positive law when it is recognized as such by the people, expressly or tacitly." 46 Tena's construction of the right to revolution seemed to run parallel to his critique, in the manner of Rabasa, of the U.S. Supreme Court's attack on social legislation early in the century, which he termed a defense of the capitalist social order (a phrase, of course, which Rabasa would never have used). Citing French theorists Maurice Hauriou and Edouard Lambert, Tena identified the penetration of the "contagion of politics" into the U.S. judicial power; it was paralizing the work of the legislator. It is necessary, he concluded, that "the Mexican defense of the Constitution [el juicio constitucional mexicano], which has taken that system as a model, preserve itself from such risks." 47 He then went on to discuss at length the juicio de amparo, which continues to be "what it always has been; a defense of the individual within the constitutional order" and not what it perhaps could never have been, "a direct and autonomous defense of the Constitution" (by which he meant a defense against unconstitutional legislation or decrees). 48	36
One can definitely sense ambivalence in the treatment of the Supreme Court by Tena Ramírez, an ambivalence pointed to years before by his mentor. Tena outlined a pattern of frequent changes in the organization of the court from the 1920s to the 1950s, a discussion that in effect emphasized its lack of independence in the face of executive authority. 49 Though his ambivalence was subdued and only implicit (what else could it be in the standard manual of Mexican constitutional law?), he probably would have agreed with his colleague Salvador Urbina, president of the Supreme Court in the 1930s and 1940s. In his 1944 prologue to Oscar Rabasa's treatise on Anglo-American law, Urbina lamented the limited power of the Mexican judiciary, asserting that the Mexican legal system "places handcuffs on the Mexican judge." 50 Tena Ramírez had great pride in the juicio de amparo as a defense of individual rights and he resisted any political intervention by the judiciary. Nonetheless, he seemed to acknowledge, as had Emilio Rabasa earlier, the weakness of the Mexican Supreme Court in the face of executive authority, now enhanced within the revolutionary state.	37
What conclusions can we draw concerning Mexican constitutionalism from the thought of Emilio Rabasa, the country's most important historian and jurist of the early twentieth century? First of all, his work was part of a difficult attempt to bring together elements of the two Western legal traditions. The attempt has been the more difficult because it pertains only to public law; private law in Mexico has remained solidly within the civil law world, and mastery of private or civil law has been the continuing basic objective of legal education. Thus the assumptions derived from civil law have inevitably inserted themselves into public or constitutional law, even though many of the constitutional forms, particularly pertaining to the judiciary, were adapted from the United States.	38
Emilio Rabasa's intellectual trajectory demonstrates clearly this anomaly in Mexican public law. As a historical constitutionalist with a broad comparative vision, fortified by years spent in the United States, Rabasa sought to strengthen Mexico's judiciary so that it could become a limiting force on personal executive power, whether the version was pre- or postrevolutionary. Though he saw the need for strong government in the nineteenth century, even for "dictators" like Benito Juárez and particularly Porfirio Díaz, Rabasa concluded optimistically on the eve of the Revolution that the stage of dictatorship was over and that the constitutional stage would follow. As an elitist he saw that stage as "democratic oligarchy" based on a powerful supreme court on the U.S. pattern. Yet the dictates of Rabasa's own legal tradition were in conflict with that pattern, and he found unacceptable the actions of the U.S. interventionist courts of the early twentieth century. Influenced by French legal theorists, Rabasa rejected "legislation by judges" and paradoxically took a position that could be used to justify revolutionary social measures, measures that were inimical to his general social thought.	39
In the juridical realm itself, Rabasa made numerous efforts to "purify" Mexico's system of judicial review, the juicio de amparo, so that it could function effectively as a process for guaranteeing individual constitutional rights. His most dramatic effort was to propose late in his career a court of cassation on the French model, in order to remove from the clogged agenda of the Supreme Court the myriad cases that arose from challenges to poorly applied decisions on ordinary legislation. Thus freed, the Supreme Court could become a true power of government and perhaps a more effective restraint on executive authority. But Rabasa's dual solution was ignored and Mexico's Supreme Court continued to function as a hybrid of the two systems, French and North American, and its independence within the government was undermined.	40
However, Rabasa's critique of the conservative U.S. interventionist courts, a critique pursued by his student Felipe Tena Ramírez, raises the question of the role of judicial review in a revolutionary regime whose objective is legislation to transform society. It may be that the civil law tradition, with its modern origins in revolutionary France, was better suited to Mexico than its common law counterpart. The extreme separation of powers, the ideological impulse driving codification, the suspicion of judges and judge-made law, all of these civil law elements favored a regime of social transformation, at least ideally. 51 Perhaps this is one reason, though certainly not the only one, why Rabasa's juridical successors made their peace with the revolutionary state and why his form of historical constitutionalism, with its envisioned "democratic oligarchy," did not outlive him. However, as Mexico now confronts a long-entrenched quasi-authoritarian government in the hands of a single party, perhaps Rabasa's version of constitutionalism, modified for our more democratic times, will regain its significance. 52	41
Finally, we return to the "problem" of Mexican constitutionalism posed at the beginning of this article. By considering it within the context of conflicting legal traditions, can we not surmount the North American temptation to resort to the terminology of "success" and "failure"? The institutional and legal differences between Mexico and the United States are deep and enduring, despite a common border and the inevitable influences that flow in both directions. The thought of Emilio Rabasa and his followers may provide a window through which we can view the interaction of North American influences and the resistant legal tradition embedded within Mexican constitutionalism.	42
Charles A. Hale is a professor of history, emeritus, at the University of Iowa. This article is a revised and expanded version of a conference paper, published in Spanish in Historia Mexicana 48 (1998): 97-125. The author acknowledges the support of the David Rockefeller Center for Latin American Studies, Harvard University, and its director, John H. Coatsworth, in the preparation of this article, as well as the ongoing help of Jaime del Arenal Fenochio and John Reitz. All translations are the author's unless otherwise indicated. Notes       1. See, for example, Keith S. Rosenn, "The Success of Constitutionalism in the United States and Its Failure in Latin America: An Explanation," Inter-American Law Review 22 (1990): 1-39. Interestingly enough, the "success" and "failure" theme is much less prominent in Rosenn's two earlier authoritative articles: "Judicial Review in Latin America," Ohio State Law Journal 35 (1974): 785-819, and "The Protection of Juridical Independence in Latin America," Inter-American Law Review 19 (1987): 1-35. See also Michael C. Taylor, "Why No Rule of Law in Mexico? Explaining the Weakness of Mexico's Judicial Branch," New Mexico Law Review 27 (1997): 141-66. Taylor focuses primarily on the ineffectiveness of post-1917 reforms of the judicial system.
2. For a fuller discussion of nineteenth-century Mexican constitutionalism, see my "The Revival of Political History and the French Revolution in Mexico," in The Global Ramifications of the French Revolution, ed. Joseph Klaits and Michael H. Haltzel (Washington and Cambridge: Woodrow Wilson Center Press and Cambridge University Press, 1994), 158-76.
3. Laboulaye's 1842 essay on Savigny can be found in Études contemporaines sur l'Allemagne et les pays slaves, 3d ed. (Paris: Charpentier, 1868), 239-310. See also Hermann Kantorowicz, "Savigny and the Historical School of Law," Law Quarterly Review 53 (1937): 326-4The only English version of Savigny's manifesto, On the Vocation of Our Age for Legislation and Jurisprudence, dates from 1831 (reprint, New York: Arno, 1975). The first recognition of Savigny in France may have been by Jean Louis Eugéne Lerminier, who in his Introduction génerale à l'histoire du droit (Bruxelles: Hauman, 1829), vi, testified to the impact Savigny's manifesto made on him as a law student forced to "learn the meager and dry formulas without animation or life" of the French Civil Code. Savigny, he said, made him realize the difference between loi and droit. On this general topic, see the illuminating study by Donald R. Kelley, Historians and the Law in Post-Revolutionary France (Princeton: Princeton University Press, 1984).
4. This section of the article has been drawn from my The Transformation of Liberalism in Late Nineteenth-Century Mexico (Princeton: Princeton University Press, 1989), chaps. 2-The advocates of an irremovable judiciary were undoubtedly influenced by the French anti-Jacobin campaign during the early Third Republic to establish irremovability in the Council of State, the supreme administrative tribunal. See David Thomson, Democracy in France (New York: Oxford University Press, 1952), 59-60. The campaign produced at least two elaborate studies by jurists: Albert Desjardins, Études sur l'inamovibilité de la magistrature (Paris: Durand, 1880) and G. Martin-Sazeaud, Recherches historiques sur l'inamovibilité de la magistrature (Paris: Imprimerie et Librairie Générale de Jurisprudence, 1881).
5. John Henry Merryman, The Civil Law Tradition. An Introduction to the Legal Systems of Western Europe and Latin America, 2d ed. (Stanford: Stanford University Press, 1984), 2. On the civil law tradition generally, see also essays by Mauro Cappelletti and David S. Clark in Comparative and Private International Law. Essays in Honor of John Henry Merryman on his Seventieth Birthday, ed. David S. Clark (Berlin: Dunker and Humboldt, 1990); F. H. Lawson, A Common Lawyer Looks at the Civil Law (Ann Arbor: University of Michigan Law School, 1953); Mary Ann Glendon et al., Comparative Legal Traditions (St. Paul: West Publishing Company, 1982).
6. The standard work on the comparative history of the judiciary with emphasis on the revolutionary reaction against the judiciary of the Old Regime in France is John P. Dawson, The Oracles of the Law (Ann Arbor: University of Michigan Law School, 1968). For the text of the decree of August 16, 1790, see John Hall Stewart, A Documentary Survey of the French Revolution (New York: Macmillan, 1951), 143-57.
7. Merryman, Civil Law Tradition, 26-2
8. Passages from Montesquieu (bk. 11, chap. 6), quoted by Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989), 192-93 n.
9. Jerome B. King, "Constitutionalism and the Judiciary in France," Political Science Quarterly 80 (1965): 69-70.
10. René David, French Law (Baton Rouge: Louisana State University Press, 1972), 19. It is important to note that Montesquieu's influence on historical constitutionalism entailed his emphasis on the balance of powers between king, nobility, and commons, and not between the executive, legislative, and judiciary, since he saw the judicial power as null. Thus the U.S. notion of separation of powers (or checks and balances), which includes the judiciary, cannot be attributed directly to the influence of Montesquieu. See R. R. Palmer, The Age of the Democratic Revolution (Princeton: Princeton University Press, 1959-64), 1: 57-58.
11. In general, see Merryman, "The Public Law-Private Law Distinction in European and United States Law," Journal of Public Law 17 (1968): 3-19.
12. Kelley in Historians and the Law demonstrates the ambivalence of the postrevolutionary judicial establishment toward codification, which in part prompted its growing enthusiasm for history and for the German historical school of law.
13. On the evolution of cassation in France, see Mauro Cappelletti, Judicial Review in the Contemporary World (Indianapolis: Bobbs-Merrill, 1971), 12-16. Cappelletti (also in Judicial Process) stresses the efforts to strengthen judicial review in post-World War II Europe and notes indications of convergence between the two Western legal systems. However, in France, the traditional Council of State, which was charged with reviewing abuses of administrative action, and the new Constitutional Council (1958) have remained basically political as opposed to judicial entities.
14. A Mexican Supreme "Court" on the U.S. pattern was established in the Constitution of 1824, but its immediate precedent was the Supreme "Tribunal," created in the Spanish Constitution of 1812, an entity tied to the legislature (Cortes) and thus more French in orientation. From these mixed origins arose the conflict between the Court's early struggle for judicial independence and its extreme entanglement in politics, succumbing finally to executive authority by 1855. See the pioneering archivally based study by Linda Arnold, Política y justicia: La Suprema Corte mexicana, 1824-1855 (Mexico: UNAM, 1996).
15. Rabasa, La Constitución y la dictadura. Estudio sobre la organización política de México, 3d ed. (Mexico: Porrua, 1956), 244.
16. Daniel Cosío Villegas asserted that according to Rabasa's son Oscar, La Constitución y la dictadura was probably written in 1910 in time to present a copy to Porfirio Díaz before he left the country in May 1911. Cosío speculated further that the book may have been prompted by the famous Creelman interview of 1908, which opened the way for public discussion on how the country could pass "from a tyrannical to an institutional regime." See Cosío Villegas, La Constitución de 1857 y sus críticos, 4th ed. (Mexico: Fondo de Cultura Económica, 1998; 1st ed. 1957), 59-60. The considerable emphasis Rabasa put on "la Conferencia Creelman y sus consecuencias," chapter 11 of La Evolucion histórica de México, 2d ed. (Mexico: Porrua, 1956; 1st ed., 1920), lends credence to Cosío's suggestion.
17. Rabasa, El Artículo 14: Estudio constitucional; El Juicio constitucional: Orígenes, teoría y extensión, 2 vols. in 1, 5th ed. (Mexico: Porrua, 1984), 133.
18. Cosío Villegas, Constitución de 1857, 51.
19. Rabasa, Artículo 14, 69-70.
20. Rabasa, Juicio constitucional, 160, 138-39.
21. Rabasa, Constitución, 193; also Juicio constitucional, 230-37.
22. There is, of course, an extensive technical literature on the juicio de amparo, and a debate on its origins, which is beyond the scope of this article. The standard work is Ignacio Burgoa, El Juicio de amparo, 32d rev. ed. (Mexico: Porrua, 1995; 1st ed., 1943). In English is Richard D. Baker, Judicial Review in Mexico: A Study of the Amparo Suit (Austin: University of Texas Press, 1971). Contrary to the conventional view, Andrés Lira González has argued persuasively for the colonial antecedents of the juicio in El Amparo colonial y el juicio de amparo mexicano (Mexico: Fondo de Cultura Económica, 1972). Article 101 also provided that the federal courts would resolve all controversies arising from federal laws that restricted the sovereignty of the states and from state laws that invaded the sphere of federal authority. These parts of the article have been much less applied than the protection of individual guarantees.
23. Rabasa, Artículo 14, 12.
24. Rabasa, Juicio constitucional, 108, 276-79, also 319.
25. Ibid., 278. On the amparo as cassation, see Baker, Judicial Review, 175-76; Kenneth L. Karst and Keith Rosenn, Law and Development in Latin America (Berkeley: University of California Press, 1971), 130 and following. For the numerous late nineteenth-century volumes of court reports devoted to cassation, see Helen L. Clagett and David M. Valderrama, A Revised Guide to the Law and Legal Literature of Mexico (Washington: Library of Congress, 1973), 406-13.
26. See, for example, Rabasa, Juicio constitucional, 337
27. Ibid., 329-33. For the U.S. context, see Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca: Cornell University Press, 1960); William W. Fisher III et al., eds. American Legal Realism (New York: Oxford University Press, 1993); Morton J. Horowitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), chaps. 1-2.
28. Rabasa, Juicio constitucional, 333. In his "Brief Introduction to the Mexican Writ of Amparo," Californa Western International Law Journal 9 (1979): 306-48 (designed to introduce U.S. lawyers to the juicio de amparo), Hector Fix Zamudio states: "It is important to note at the outset the lack of a principle in the Mexican legal system comparable to stare decisis [i.e., the power and obligation of courts to base decisions on prior decisions]" (308).
29. For Rabasa's early position, see Constitución, 188-90. On the issue in France, see David, French Law, 27.
30. See Rabasa, Juicio Constitucional, 227; Felipe Tena Ramírez, Derecho constitucional mexicano, 6th ed. rev. (Mexico: Porrua, 1963), 230, 411-12. References to Rabasa, positive and negative, were frequent in the debate over the organization of the judiciary (Article 94) in the Constituent Congress of 1916-17: see Diario de los debates del congreso constituyente, 2d ed. (Mexico: Secretaría de Gobernación, 1960), 2: 701-22 (session of 20 Jan. 1917). Cosío Villegas dismissed Rabasa's assertion in 1912 that the judicial branch "is never a power," but he failed to acknowledge Rabasa's later change of position. Andrés Lira in his "prólogo" to the 1998 edition of Cosío Villegas, Constitución de 1857, criticizes Cosío for his failure to come to grips with Rabasa's juridical ideas or with his two juridical studies.
31. Rabasa, "Reforma a la constitución política de la república, con el fin de organizar la suprema corte de justicia como tribunal que pueda garantizar la rapidez de sus resoluciones y cumplir a las funciones técnicas que la constitución le encomienda," Revista de ciencias sociales 5 (1928): 616-29, reprinted in Rabasa, Antología de Emilio Rabasa, ed. Andrés Serra Rojas (Mexico: Oasis, 1969), 2: 188-99. The speech is dated 7 Jan. 1921. The event, including a subsequent debate on Rabasa's proposal, was reported in Excelsior, 8 Jan. 1921, reprinted in Rabasa, Antología, 2: 199-204.
32. Rabasa, "Reforma a la constitución política," in Antología, 2: 194.
33. Rabasa was reacting in part against the Law of Amparo of 1919, which, after a half century of debate (that included Rabasa's Artículo 14) on the problem of overlapping cassation functions in federal tribunals and in the Supreme Court via amparo, eliminated cassation in name, though maintained it in effect with the "legality" function of the juicio de amparo. See Hector Fix Zamudio, "Casación," Diccionario jurídico mexicano, 2d ed. (Mexico: Porrua, 1987), 1: 428-30; also idem, "Brief Introduction," 324, where Fix Zamudio asserts that eighty percent of amparo suits were of the cassation type.