My last trip back to Pátzcuaro from the U.S. took 20 hours—don’t ask! Nearing home, I managed to drop my wallet in the taxi from the airport. Lost were not only cash and credit cards, but passport and FM3 (Mexican Non-Immigrant Visa) as well.
The first step was a visit to the U.S. Embassy to replace the passport—a task made easier because I had a photocopy of the front page of my passport and my original birth certificate.
Traveler’s Tip: Make two photocopies of the front page of your passport. Don’t delay—do it NOW!
When you travel, leave one copy with a relative or friend—keep another copy with you, but separate from your passport.
Fortunately, I had entered Mexico on my FM3, which legalized my stay. But I had to get the FM3 replaced before I could leave Mexico in October to celebrate our grandson’s first birthday.
Mexico's Legal System: Up Close and Personal
The good news is that the process for replacing the FM3 is a good illustration of Mexico’s legal system. Hold on to your hat—for those of us from the U.S., it’s quite a ride!
With new passport in hand, I applied at Migración for a replacement FM3. Fortunately, Reed is an old hand at assembling needed documentation—bank statements, utility bill, rental contract, etc., so that part was routine.
But there was a catch. I had lost the FM3, so I needed to get an acta administrativa (administrative certificate) from the Ministerio Público (Police Department) to ‘unhook’ me from unauthorized and/or illegal use of the lost FM3.
When the clerk in Migración told me about the acta administrativa, she smiled almost conspiratorially as she emphasized, "You just need the seal."
Needless to say, we weren’t thrilled by the prospect of locating and visiting the local Federal Police Station. While dithering, we spent a lovely Sunday with a good friend. Told my FM3 woes, she retorted with a chuckle, "If it's notarized, it's gold!"
Intriguing comment, but what exactly did it mean?
Legal Systems Worldwide: Common Law (Minority) versus Civil Law (Majority)
Curiosity piqued, Reed began researching the history of the
Notario Público in Mexico. A friend of ours is a retired U.S. judge involved in introducing Western legal thought to Chinese judges and attorneys. During a visit with us, he had mentioned that English common law is the
minority legal system in the world—prevailing only in countries colonized by England.
To our surprise, the
dominant legal system for over 150 countries worldwide, including Spain and Mexico, is civil law (or civilian law) inspired by Roman law. For historical reasons—that is, as a former colony of Spain and France—the legal system of the State of Louisiana in the United States is based on civil law.
To create the landmark Napoleonic Code, Napoleon had adapted the older Roman system. The primary feature of civil law as a legal system is its collection and codification of laws.
Civil law begins with a body of abstractly written principles that constitute
rules of law. As they are enacted, statutes and laws are added to these rules of law. The role of judges, attorneys and
Notarios Público is to assure that all documents—deeds, wills and contracts, etc.—
conform to the rules of law laid down in the legal code.
Factoid Reed just reminded me that the role of the
Notario Público is consistent with the neo-Platonic and Thomistic philosophical reasoning that dominated Spanish colonial thought in
Nueva España (Mexico). In a nutshell, reasoning proceeds deductively (‘top-down’) from universal truths established by God (Church) or the Spanish king (law).
In his masterful
Sor Juana Inés de la Cruz, or the Traps of Faith, Octavio Paz writes powerfully about this mindset, its impact on Spanish colonial society, and its often unrecognized and unacknowledged impact on contemporary Mexican culture.
Perhaps the difference between the Mexican and U.S. legal systems boils down to whether the legal system is top-down or bottom-up.
- Civil law: Begins with a code of legal rules, laws and statutes and applies them top-down to specific legal situations; that is, it is formal.
- Common law: More of a bottom-up tradition, it relies not only on laws and statutes but on a body of legal precedents (case law) built up and interpreted by judges over time; that is, it is historical.
As a legal expert, the
Notario Público's seal ("
gold") guarantees to all parties that the document as drawn up
complies with—i.e., meets—all
applicable legal requirements in an effective—i.e., acceptable—form. In sum, the focus of civil law is
form rather than
substance.
We were just about to discover how the legal system works in real time!
Back to the FM3
Now the truth is that I had lost the FM3 in Michoacán State, which meant that I should get the acta administrativa from the Federal Police Department in Morelia—a five-hour bus trip each way.
We decided to revise my story: I had lost my wallet between looking at the apartment where we now live in Coyoacán (Mexico City)—hence, reinforcing our current address—and the hotel where we were staying. This version puts the loss squarely under the jurisdiction of the Ministerio Público of the Distrito Federal (Federal District, or Mexico City).
When we arrived at the Ministerio Público, the clerk at the Information Counter smiled as she told us to go to the Internet Café (!) on the next corner to fill out the application. If she wasn't concerned, I guess I didn't have to be either, but still....
In response to my voiced concern about an Internet Cafe, she added, “The owner knows very well how to fill out the application.”
She was absolutely right. The owner did indeed help me fill out the application and print it out. He then sent me back to the clerk at the Information Counter, who took my application and asked me to take a seat in the waiting area. After little less than half an hour, a young man beckoned me to enter his office.
“This is it,” I thought, “here comes the cross-examination of my story to verify that I’m telling the truth.” Instead, the young man politely offered me a chair, set my application in front of me and asked me to sign here…and here…and here.
He then literally rubber-stamped the document in several places. One might reasonably surmise that this rubber stamp is the official seal ("gold") verifying the truth of my story. But we’re discovering a reality that is considerably more nuanced.
The process of replacing the FM3 required us to produce specific documents, but at no point did anyone question me about the basic facts—how, when or even where I lost the FM3. This is an incredibly important point.
A Mexican attorney friend remarked, "Even Mexicans don't understand that the key to successful resolution of trámites lies in the ability to produce documents that comply with—that is, fulfill—the legal requirements."
Lesson Learned
Needless to say, when I returned to Migración to deliver my application, including the acta administrativa complete with its official seal, the clerk smiled, processed my application and told me to return in three weeks to pick up the replacement FM3. Just as simple as that.
Clearly, the key to resolving a trámite—bureaucratic procedure—requires, first and foremost, documents that comply with the formalities of the law. Mexicans respond with a knowing smile when they talk about the difficulties of resolving trámites—rueful acknowledgement that the trámite has little, if any, relationship to reality.
It's an important lesson for this extranjera—or anyone else—living in Mexico, or simply wanting to understand Mexican culture better.
Need to Know More?
Interestingly, foreign law is applied by U.S. courts under certain conditions. A survey of cases involving foreign law resolved by California courts in 2004-2005, shows that a total of 100 cases were governed by Mexican law, 57 by Canadian law, 29 by Japanese law, 28 by German law, and 12 by Chinese law.
Law Professor Jorge A. Vargas holds legal degrees in both Mexico and the U.S. His concise summary of
Mexico and Its Legal System is highly recommended.
If you're curious about Mexican bureaucracy, other Jenny's posts are useful:
Labyrinths of Power: Encountering Mexican Bureaucracy and
Tips for Succeeding with Mexican Bureaucracy.
