NOTES ON THE DEBATE ABOUT THE AMPARO CASACION IN MEXICO
José María SERNA DE LA GARZA*
Original Text (Spanish) PDF
I. Introduction. II. Critical Review of the Different Arguments Used in the Debate. III. Conclusion.
The purpose of this study is to review some of the aspects concerning the debate on the amparo casacion in Mexico. We believe that at this time it is advisable to carry out a review of this discussion, based on the relevance this topic has had in our country over the past years.
To this regard, we have proceeded to carry out a critical review of a set of questions and concerns of great significance to the people that have been involved with this topic in the past and nowadays. Therefore, on the following pages, we will try to discuss the following questions: 1) Does the amparo casacion challenge the sovereignty of States? 2) Does the amparo casacion challenge the principle of res judicata? 3) Does the amparo casacion represent a "distortion" of the writ of amparo? 4) Is the amparo casacion a remedy for the citizens of a federal state of the United Mexican States to counteract the influence that powerful figures exercise upon local justice?
We do not intend to end the discussion on amparo in Mexico. That would be impossible, given the nature of the academic debates and the different points of view, all of which are reasonable and fully grounded and can be cited in regard to this controversial topic. On the contrary, our purpose is to make our own contribution to the age-old debate in order to identify possible ways in which the institution under study could evolve in the future.
II. CRITICAL REVIEW OF THE DIFFERENT ARGUMENTS USED IN THE DEBATE
1. Does the amparo casacion challenge the sovereignty of States?
Talking about "sovereignty" of the federal states of the United Mexican States is commonplace in Mexican political discourse. However, it should be said that the issue of sovereignty in the scope of our federal system has given rise to heated debates, basically because of the ambiguities shown in the Constitution in dealing with this subject. On one hand, Article 39 establishes that national sovereignty originally and essentially derives from the people, while, on the other, article 40 describes free and sovereign states. Nevertheless, traditional doctrine regarding sovereignty states that sovereignty is indivisible.2 As a consequence, there cannot be two holders of sovereignty in the territory of a same State. As it is well-known, the fact that sovereignty is indivisible is an essential notion of it. Based on that, who is the sovereign?: the people or the federal states?
In the debate on the amparo casacion in Mexico it has been repeatedly argued that this concept challenges the sovereignty of the states, since it reduces the decision-making capacity of their jurisdictional institutions with regard to matters concerning their domestic regime. On the other hand, there have been arguments in favor of the amparo proceeding against final judicial decisions of state courts, that tend to not acknowledge the sovereign nature of the federal states. In our opinion, national constitutional doctrine should be cited to find a convincing explanation to solve this problem.
The national constitutional answer consists of recognizing the difference between being the holder of sovereignty and the capacity to exercise it.3 Therefore, there is only one holder of sovereignty, which is the people. Meanwhile the exercise of sovereignty corresponds to the Federal State and its states, pursuant to article 41 of the Constitution.4
If we accept this reasoning, we have to admit that the holder of sovereignty is the people of Mexico. In order to explain this statement we must point out that the text of Article 39 of the Constitution is basically the expression of the theoretical foundations of a democratic regime, which is based on a general and abstract notion of "people" as the main point of reference to legitimate public authority in our constitutional system.
Therefore, the holder of sovereignty is only one. But there is more than one body in charge of exercising sovereignty; these bodies have a public nature and are divided into two fields: the Union and the states.5 This means that, without being the holders of sovereignty, the federation and the states exercise sovereignty by means of their constituted powers, within the limits established by the general Constitution. That is how, we believe, the sovereignty of the federal states should be understood: as the ability to exercise a set of powers, the holding of which does not correspond to the states nor to the federation, but to the Mexican people.
Some authors have preferred to make reference to the notion of states’ sovereignty as "local autonomy".6 Yet, this autonomy is not absolute, but rather limited by different articles of the general Constitution, such as Article 116, that provides the general bases under which the states shall organize themselves to make up their domestic government, or articles 117 and 118, each of which establishes a list of bans for the states.
Thus, it is clear that neither the states nor the federation are the holders of sovereignty. Both are limited by the General Constitution of the Mexican Republic and in that instrument the limits of their powers are defined.
So, within this context, and to return to our original discussion, we can pose the following question: under which hypothesis could we talk about the existence of a violation of states’ sovereignty by the federation? In our concept, the hypothesis is set forth when a power of the Union encroaches the area of competence of the states as defined by the General Constitution.
What is to be highlighted in this discussion is the fact that, after all, the exercise of sovereignty by the powers of the Union and the powers of States is defined and limited by the General Constitution of the Mexican Republic, which is the source stating the competence of the above-mentioned bodies, based on the principle that any power that is not expressly set forth by the Constitution in favor of federal powers and, we should add, nor forbidden to the states, is reserved to the states.7
It should also be mentioned that when we talk about a division of fields of competence, we are not talking about isolated spheres or completely separated spheres. That is not what our General Constitution has created. On the contrary, there are communicating vessels, interactions and even interventions set forth in and admitted by the Constitution that make up the complete federal State to which all the public bodies of our country belong.
In fact, the states, for instance, can take part in making up federal decisions. Is not the Senate of the Mexican Republic considered the House that represents the states? In principle, the Senate is, or should be, the guarantor and the voice of state interests, or at least that is what always has been said over and over again. Furthermore, we should remember that local legislatures take part in the reform process of the General Constitution, as set forth in article 135 of the Constitution. Therefore, by taking part, they can influence the organization and powers of the federal and local powers.
Likewise, we know that the Senate may intervene in case the powers cease to exist and to solve the political conflicts arising between the powers of one state, pursuant to article 76 (V) and (VI) of the Constitution. These interventions do not obey caprice or arbitrariness, but the needs of our own historical experience that led to the inclusion of the above-mentioned clauses in the 1857 Constitution, which later were included in the 1917 Constitution.8 The fact that these clauses have been incorrectly used during certain periods of the hegemonic-party system in Mexico should be set aside.
By virtue of these circumstances, we can assert that the federal Mexican system is made up of a set of instruments that give rise to the participation of the states within the federal sphere, and the participation of the federation within the life of the federal states. For these communicating vessels to be fully valid it is necessary that they be set forth in the Constitution. From this point of view, what is considered a violation to the sovereignty of a state is an intervention, not established in the Constitution, of a power of the Union in a state.
In short, instead of following a political line of discussion, we prefer to follow a juridical line, based on the notion that each field of competence is determined by the Constitution. That is why the measure of the ability for the states and the federation to exercise powers is defined by the Constitution. This means that the sovereignty exercised by federal powers and states does not exist outside the constitution but inside it and it is subject to the limits the constitution itself has provided. Taking into account such a concept, the instruments or mechanisms set forth in the Constitution and through which the federation may have influence on the domestic affairs of states cannot be considered a violation to their sovereignty. Only when the federation uses mechanisms that are not established in the Constitution, it is considered a violation to the sovereignty of states.
Contrary to the regulatory view related to the sovereignty or autonomy of the states, it could be argued that the states preserve their sovereignty in that concerning their domestic regime, regardless of the general Constitution of the Mexican Republic. Some people may try to explain that there is a part of the original sovereignty of the states that was never delegated.9
However, this kind of opinion tends to leave certain issues unsolved, undermining thereby their scope and possibilities. Firstly, this perspective leads us to a problematic concept of divided sovereignty, hardly compatible with the classical notion of sovereignty. That is to say, if there is a part of original sovereignty that has never been delegated by the federal states, we then have two holders of sovereignty: the people and the states. Secondly, the same perspective would lead us to believe that a set of mechanisms asserting unity, a minimum of uniformity, and the integrity of the federal states, constitutes an attack on the sovereignty of the states. That would happen with regard to the powers set forth in article 76 (V) and (VI), as well as with the possibility of filing impeachment action against the governors of the states as laid down in article 110 of the Constitution; the constitutional bases on organization laid down in articles 115 and 116 of the Constitution; the prohibitions imposed on the federal states by articles 117 and 118 of the Constitution, and the powers of the Federation set forth in article 119 of the Constitution.
Finally, the perspective in reference would be inconsistent with the normative nature of the Constitution. If we accept that the states have a core of faculties and powers untouchable by the General Constitution of the Mexican Republic, then we face the problem of defining that core in normative terms. In our view, the definition of the core would be left to the discretion of the political will of each state, which would have disintegrating consequences on the federal system as a whole.
The above-mentioned reasoning leads us to conclude the following: since the amparo casacion is set forth in the Constitution as a mechanism through which the Judicial Branch of the Federation may influence the domestic life of the states, it cannot be said that it represents an attack on the sovereignty of the states.
Finally, we believe that it is not possible to rely on the argument that it is essential to all federal systems that state courts be the last instance (tier) for those cases whose resolution requires the application of state laws. In fact, we believe there is no unique model of federal-system that should be followed by all states that decide to adopt this form of political organization; on the contrary, each federal system develops its own institutional rules and solutions. In this regard, and following Doctor Fix-Zamudio, the fact that in Canada, Germany, and Austria state legal matters are submitted, in the last instance, to federal courts, considered to be hierarchically superior to state courts, does not make those countries less "federal" than other countries where that does not occur, such as in the United States of America. It is simply a question of different Federal-State models.10 If we believe this assertion to be true, we must also accept the fact that the amparo casacion is also compatible with the Federal-State model our country has adopted.
2. Does the amparo casacion challenge the principle of res judicata?
In the debate on amparo casacion there were some who suggested that such an amparo would be an attack on the principle of res judicata. It was so, supposedly because the judgments pronounced by states’ superior courts of justice were to be reviewed by federal courts. Nonetheless, we believe it is necessary to study this point further in order to determine whether it is a violation to said procedural principle.
We should begin by defining what the principle of res judicata is about. For Cipriano Gómez Lara, res judicata is an attribute, quality or authority of judgments to become final.11 On the other hand, Eduardo Pallares defines res judicata as the "authority and force given by the law to a final and binding judgment. We shall define authority as the legal need for the contents of a judgment to become irrevocable and unchangeable; regardless of the fact that such judgment has been pronounced in a trial or in any other procedure. Force refers to the binding power emerging from the res judicata; in other words, what a judgment orders must be done."12
It should also be mentioned that the purpose of res judicata is clearly to have legal security. In this regard, Doctor José Ovalle states the following:
Regularly, procedural laws provide the parties with the means of appeal to challenge judicial decisions… But these means of appeal cannot go on indefinitely; since the litigation —resolved firstly by the final judgment— remains permanently indefinite as well. In order to provide security and stability to legal relationships, the laws related to the process have to provide a precise limit to the possibilities to appeal and to strengthen the resolutions made by the court. The purpose of the principle of res judicata is, precisely, to establish the date as of when the judgment can no longer be appealed; the litigation that resulted in the judgment in question cannot be discussed further at any later procedure.13
Therefore, in view of these definitions, when does a judgment is to be considered res judicata? Obviously, the answer is not that every judgment, only for being pronounced, is considered res judicata. Were that the case, we would have to accept the fact that a common appeal to the judgments pronounced by trial judges is an attack on the principle of res judicata.
In our opinion, the principle of res judicata is applicable when the law makes a final judgment non-appealable, because it cannot be challenged through any mean. The fact that a judgment has become final because no appeal can be taken does not arise as long as there is the possibility to challenge it and that possibility remains open provided the law allows it.
In other words, the res judicata is not an absolute principle that exists regardless of the law.14 To the contrary, in order to be constituted, res judicata depends on the terms and requirements set forth by the law. Therefore, each rule of procedure shall establish different terms and requirements that would be conditions to consider a judgment res judicata.
Our legal system provides different mechanisms for challenging judicial decisions. Among them, the appeal is the most commonly used means of challenging final judgments.15 The judgment pronounced by a judge in state legal matters can be considered res judicata if it is not appealed within certain term, defined by the corresponding procedural code. The amparo proceeding against a judicial decision, on the other hand, is the means through which a review to a judgment pronounced by a Superior Court of Justice of a state can be requested.
It should be remembered that the doctrine debates whether the amparo is a remedy or a proceeding.16 Nonetheless, what we want to point out in this work is the fact the judgment of a Superior Court of Justice of a state is to be considered res judicata if the amparo proceeding against a judicial decision is not filed within the term defined by the Law of Amparo. These rules do not represent an attack on the res judicata, they are precisely the contrary; that is to say, they are the legal definition of the terms and conditions under which the res judicata is likely to take place in our country.
Going against the principle of res judicata would require a different hypothesis. In other words, it would require a hypothesis in which any sentence can be challenged at any time, without time limits with regard to the terms in which it has to be filed. If this occurred, it is clear that the interest protected by the principle of res judicata, legal security, would be absolutely subjected to the unrestricted discretion of the litigating parties. However, and to end this topic, this hypothesis does not exist in our legal system, nor with regard to the appeal or the amparo casacion, since the law defines exactly the terms under which a judgment can be considered non-appealable.
3. Is the amparo casacion "distorted"?
Some authors, such as Rabasa, have argued that the amparo casacion represents a "distorted" version of the original amparo, which leads us to reflect on some of the aspects related to the emergence and evolution of legal institutions.
In the end, it can be assumed from the argument in reference that a legal institution has an unchanging nature, an invariable essence that exists regardless of any human needs. Therefore, any deviations from that strong and necessarily unchanging substance would mean a "distortion".
Based on the above, the legal institution of the amparo has an essence, or an essential intrinsic nature, that should not be altered. Such a nature was "fixed" (so to speak) at the moment this institution was devised and created, so that later changes to the original scheme can only be understood as corruption or vice with nothing but negative consequences.
Based on this approach to understand legal institutions, we would have to present an alternative conception, which is: legal institutions do not have a nature or essence that is independent of human needs. Legal institutions, among which that great institution known as the State is included, are an "artificial" creation of human societies.17
Zippelius can give us strong grounds to go further in the description of the legal institutions conception. In his Teoría general del Estado, he asserts the following:
Social behavior, as happens in any human behavior, is not sufficiently and reliably ruled by instincts; thus, there have to be artificially created patterns of behavior that allow men to control their actions mutually, in a sociably acceptable, foreseeable, and safe way. The "institutions", that is, the ruling orders of behavior for different fields of life, which have emerged within the course of cultural development, supplement the genetic code to shape the behavior patterns of complex societies…18
If we follow this way of understanding institutions, we have to assert that legal institutions cannot be linked to alleged unchangeable "natures" or "essences" that have autonomous existence unconnected to social life. On the other hand, legal institutions emerge and evolve as artificial behavior patterns that attempt to make life in society possible. The contents and characteristics of institutions must meet the needs and demands set forth by social life, instead of meeting those of an alleged "nature". Such, and no other, is the raison d’être of institutions, which do not exist by themselves, but to solve social problems and conflicts.
Moreover, should we, based on that conception, go back once again to the topic of amparo, in general, and specifically, to the amparo casacion, it will be then necessary to divest the amparo of its alleged essential and inalienable nature. Should we do that, the idea of a "distorted" amparo will be completely groundless.19 Summarizing, the amparo is a legal institution whose emergence and evolution has met the requirements and demands that the Mexican society has set out throughout its history. By virtue of this, the idea of "distortion" should be replaced by that of the development of an institution, contingent and not essentialist development distinguished by the instrumental nature of the institution itself, according to the need of effectively ruling and channeling the Mexican social life.20
4. Is the amparo casacion a remedy for the citizens of states, to counteract the influence that powerful local figures exercise upon state justice?
In the debate on amparo casacion, it has been argued that the amparo casacion is justified as the sole means to counteract the influence that "powerful men" or the governors themselves usually exercise upon state courts. Specifically, Carranza’s Constitutional project explained and justified the survival of the amparo casacion based on the submission of state justice systems to the powerful influence of governors who "clearly interfere in matters that are completely beyond their duties..." thus, "...it was necessary to have a remedy that leads them to go to the federal judicial authority to repress such excesses." Pursuant to the aforementioned project, the amparo casacion should be preserved "to be safe from judges’ arbitrariness".21
Therefore, within the legal amparo there is, as can be seen, a safety-valve logic, which allows "external" review of state judicial procedures. Is this good or bad?
A more or less generalized opinion at state superior courts of justice is that this situation is not legitimate. The arguments agreeing with that position vary from the idea that the "amparo is distorted" (since it is not its original function) to the notion that the direct amparo is an attack on the sovereignty of the states, by "subordinating" state justice to the federal justice. Finally, let us remember the arguments of the Declaration of Queretaro, signed by the chief justices of the federal states supreme courts of justice (a declaration that was highly critical of the amparo casacion).
It is important to clearly understand that this opinion is mainly held by state courts, and not by the states themselves as a whole. In fact, from the few polls on this topic that have been carried out in the states, it can be seen that there is a preference for the survival of the direct amparo, based on the opinion of state bars.
In order to exemplify this, we can mention the opinion poll carried out by the Reforma newspaper, which asked the following question to bars, bar associations and law firms in 23 Mexican states: "Two years ago, the state superior courts of justice requested that the direct amparo to disappear so that the judgments pronounced would be final and not subject to federal review. Would you be: in favor of doing away with the direct amparo; in favor of limiting it so that it can be only filed in certain cases; in favor of leaving it just as it is".
The results of the poll were the following:
In favor of doing away with the direct amparo: 2%.
In favor of limiting it so that it can only be filed in certain cases: 14%.
In favor of leaving it just as it is: 86%.22
Of course these data cannot be considered conclusive. With regard to this and other topics related to the organization and functioning of the Mexican legal system, it is still necessary to carry out empirical research which provides "hard data", which would in turn lead us to reach sounder conclusions. However, the results of the poll suggest, as we understand it, something very important that is sometimes lost in the debate: the survival or elimination of the amparo casacion is not a question that has to be discussed and resolved only by state or federal courts. The debate and its resolution are a matter that concerns society as a whole. If the amparo casacion evolved the way it did, by breaking away from the original conception of amparo, it was because it responded to the pressure and demands of society, particularly, of the states’ societies.
In other words, the amparo casacion has been the safety valve that local litigants have made use of to overthrow powerful local influence in state justice. It is an instrument for the citizens who, for any reason, have to appear before state courts to resolve a controversy related to them, their families or patrimony.
Doing away with the amparo casacion would imply eliminating the instrument used by state citizens since the end of the 19th century. It is thus understood why bars, bar associations and law firms of 23 federal states that responded the aforementioned poll were in favor of the survival of amparo casacion as it is now. Furthermore, in our opinion, it would be necessary to carry out polls among other groups or people (such as businessman and academician associations, unions, local political parties, agricultural worker groups, etc.) in order to know if the opinion held by bars, bar associations and law firms coincides with the opinion of wider sectors of local societies. Doing that would be convenient, since it could be that that bars, bar associations, and law firms pronounce themselves in favor of amparo casacion because of economic reasons.
In summary, the amparo casacion was not created to satisfy the needs of state courts; it was created to assist state citizens and societies. It would be good to ask the latter, instead of just asking state courts, if the instrument in question should survive or be done away with (or, if the case, to be modified).
As can be seen in this survey, the amparo casacion, its admissibility or inadmissibility in the national legal framework, has lead to numerous and heated debates in our country, since the last third of the 19th century. There have been many arguments aimed at doing away with this institution, and there have also been opinions tending to preserve and strengthen it. The debate is still being discussed nowadays and it will surely be discussed in the future.
The purpose of this study has been to contribute to this age-old debate, which has great significance in our country. In order to do that, we have developed a review of some of the main issues of this controversy. Nevertheless, so as to given a more conclusive opinion, we have to examine many aspects of the discussion, bearing in mind the fact that, in the end, there is no single federal state model. Somehow, each federal State constitutes its own model, with its own characteristics and particular and specific institutions, provided that certain minimum requirements are complied with. Rossen, for instance, has pointed out that the features of federalism can be reduced to two: the constitutional separation of powers among a central level and regional levels of government, and the existence of an instance of regional representation in the central level of government.23 On the other hand, Pernice underlines that in order to be able to talk about a federal system there needs to be a legal institution made up of states whose purpose is to achieve common objectives; in order to achieve them, this institution is empowered to exercise unrestricted but direct jurisdiction over its citizens; however, individual states are autonomous with regard to other areas of public nature.24 However, within the general scheme defined by these minimum requirements, the possibilities of variation, differentiation, and innovation are many. In short, the amparo casacion is perfectly compatible with federalism, which in turn does not mean that said institution is necessary for the survival of Mexican Federalism.
* Researcher of the UNAM Legal Research Institute.
1 This article is part of a broader study on the Amparo Casacion in Mexico, written out by the author and which will be published in the near future.
2 A brief description of the traditional or classical idea on sovereignty can be found in Bobbio, Norberto and Matteucci, Nicola, Diccionario de Política, Mexico, Siglo XX Editores, 185 pp. 1524-1545.
3 See Tena Ramírez, Felipe, Derecho constitucional mexicano, Mexico, Porrúa, 1978, pp. 5-8.
4 Article 41 of the 1917 Constitution: "The people exercises the sovereignty through the Powers of the Union, when these Powers have competence upon it, and through the Powers of the States, as to their domestic regimes in the terms respectively established by this Federal Constitution, and by the State Constitutions, which shall not contravene the Federal Pact under any circumstances".
5 In fact, from the point of view of the regulatory bodies cohabiting in a federal system, we should talk about three levels: a general order, a federal order, and the order that corresponds to the states. However, from the point of view of the bodies that carry out similar duties to those of the above-mentioned regulatory orders, doctrine has accepted the idea that when there are no special bodies (that may exist, but do not exist), local or federal bodies (or a mixture of both) carry out duties related to the general order. See Schmill, Ulises, Fundamentos teóricos del control de la constitucionalidad en México, Fontamara, 2001, pp. 271-277.
6 For instance, see the work of Carpizo, Jorge, Estudios Constitucionales, Mexico, LGEM-UNAM, 1983, pp. 95-99, and Aguirre Saldvar, Enrique, Los retos del derecho publico en material de federalismo, Mexico, UNAM, 1997, p. 153.
7 In fact, the distribution system of competence in Mexican federalism goes beyond the principle of Article 124 of the Constitution. For instance, there are coexisting and coinciding powers (named "concurrent" by some); besides, there are powers the Federation or the federal states that are prohibited, and there are other powers the federal states are expressly entrusted to.
8 With regard to the historical origin of these clauses of article 76 of the Constitution, see Tena Ramírez, op. cit., note 3, pp. 451-460.
9 This idea arises from a political reading of the historical process of creation of the Federal Mexican State. According to this reading, the Federal Mexican State was formed by a delegation of powers carried out by sovereign states in order to form a central (federal) authority. Nevertheless, this is only one of the political interpretations given to the same historical process. Other authors hold the view that the Federal Mexican State was formed by the decentralization of a previously centralized structure of authority. See, for example, Fray Servando Teresa de Mier’s opinion, who believed that federalism was a method to destroy what was united before. Quoted by Faya Viesca, El federalismo mexicano, Mexico, Porrúa, 1998, p. 52.
10 Fix-Zamudio, Héctor, "El Poder Judicial y el federalismo mexicano", in Faya Biseca, Jacinto (coord.), Impluso al nuevo federalismo mexicano, Revista AMEINAPE, no. 1, Mexico, 1996, p. 138.
11 Gómez Lara, Cipriano, Derecho procesal civil, Mexico, Harla, 1997, p. 188.
12 Pallares, Eduardo, Diccionario de derecho procesal civil, Mexico, Porrúa, 1983, p. 198.
13 Ovalle Favela, José, Derecho procesal civil, Mexico, Harla, 1998, p. 180. Gómez Lara has made a similar argument: "…the purpose of the law for creating this principle is to provide certainty and permanence to legal situations punished by the judgment... That permanence and certainty are necessary in order to keep social peace and balance; otherwise, litigations could be reconsidered indefinitely. This is the social role of res judicata; as we also raise the question of the social role of the evidence, it is also possible to talk about the social role of res judicata". Gómez Lara, op. cit., footnote 11, p. 188.
14 Ovalle quotes Couture to explain the nature of res judicata. "Res judicata is a political demand and not exactly a legal one; it is not a natural, but rather a practical demand." Couture, Eduardo., Fundamentos del derecho procesal civil, 3rd. ed., Buenos Aires, Depalma, 1958, p. 407, quoted by Ovalle, op. cit., footnote 13, p. 181.
15 Ibidem, p. 208.
16 See, for instante, Burgoa, Ignacio, El juicio de amparo, Mexico, Porrúa, 1999, pp. 117 and subsequent pages.
17 The "artificial" nature of the State and the law is an idea that dates back to Hobbes, present in all the theories concerning the State, up to contemporary authors such as Zippelius. Hobbes, for instance, says that "...men, for the attaining of peace, and conservation of themselves thereby, have made an artificial man, which we call a commonwealth; so also have they made artificial chains, called civil laws, which they themselves by mutual convenants, have fastened at one end..." See, Hobbes, Thomas, "Leviathan", in Thomas Hobbes, Selections, ed. by Frederick J. E. Woodbridge, New York, Charles Scribner’s Sons, 1930, p. 371.
18 Zippelius, Reinhold, Teoría general del Estado, Mexico, UNAM, 1985, pp. 44 and 45.
19 We must establish the difference between two provisions of the Civil Code of the Federal District (which can be also found in most civil codes of the federal states), which make reference to the "nature" of certain legal institutions: the contracts. For the purpose thereof, Articles 1976 and 1855 of the aforementioned civil code provide the following:
"Article 1796. Contracts are perfected only by consent, except for those that have to comply with the statutory requirements. As of the moment they are perfected, they bind the contracting parties not only to fulfill what has been expressly agreed, but also the consequences that, according the contract’s nature, are in accordance with good faith, practice or law".
"Article 1855. For those words that could have different meanings, the meaning might be given according to the nature and purpose of the contract (the italics are ours).
This text could lead us to believe there are legal institutions (contracts) that do have an essential and fixed nature. However, if we pay attention to the way these provisions have been understood by experts on civil matters, we will realize that this notion has a different meaning. In fact, and as an example, Professor Ignacio Galindo Garfias defines the "nature" of contracts as follows: "We shall define the nature of a contract as of the kind to which legal business belongs, pursuant to the general classification for contracts, taking into account the characteristics set forth for each different contract. Under this assumption it no longer has to do with a simple grammatical interpretation, but the contract’s position and particular effects the law generically assigns to each category of contracts."
In other words, the "nature" of a contract is not an unchanging essence that depends on human needs; it is rather a "kind" of legal business that falls under a classification. The classification has the purpose of letting the person interpreting the contract to identify it as part of a kind (according to the characteristics shown by a particular contract, or any contract with which it could be best related, if it is a innominate contract). Each kind of contract is given a series of effects that the law generically assigns to each category of contracts. It is important to point out that the particular effects of each kind of contract do not correspond to an unchangeable and fixed underlying essence, but to a generic one that the law, created and modified by mankind, makes to each category of contracts.
20 This would be the case in which the criticism launched against the amparo casacion falls; it establishes that the amparo casacion has come to "de-naturalize" the duties of the Supreme Court of Justice, and has made it lose the "high rating" it had. Supposedly, based on that opinion, the Supreme Court had a "natural" duty (which evidently does not include to know about and resolve direct amparos) and therefore, any deviations from that duty could be only understood as a "denaturalization". It should be said that the criticism in question had grounds at the time when it was the Supreme Court that knew and resolved direct amparos, which nowadays is done by the collegiate circuit courts.
21 Message by the First Head of the 1916 constituent convention, taken from Tena Ramírez, Felipe, Leyes fundamentals de México, Mexico, Porrúa, 1995, pp. 750 and 751.
22 Reforma newspaper, April 21, 2002, p. 12A. Guanajuato was the only state where those polled said to be in favor of doing away with the direct amparo.
23 Rossen, Keith, "Federalism in the Americas in Comparative Prespective", Inter-American Law Review, vol. 26, no 1, 1994, p. 5.
24 Pernice, Inglof, "Harmonization of Legislation in Federal Systems: Constitucional, Federal and Subsidiary Aspects", in Pernice Inglof (ed.), Harmonization of Legislation in Federal Systems, Germany, Nomos Verlagsgesellschaft, Baded-Baden, 1996.