with whom Mr. Justice Ramírez Bages concurs, dissenting.
San Juan, Puerto Rico, January 31, 1967
This dissenting opinion is written on the premise that the end does not justify the means. Said premise is not only moral but juridical as well. Proof of this is the existence, in all the laws of the world, of codes and rules of civil and criminal procedure.
As there is an exception to every rule and in order to exhaust every hypothetical possibility, we can reduce the foregoing premise to the following terms: The end does not always justify the means. I sustain that the case at bar falls under this premise.
This opinion is also written on the second premise that the Supreme Court of Puerto Rico, because of its high rank *905within the official hierarchy of our society and because of its special nature as a ruling institution of our law, is bound to deal with it with utmost care. If it were possible — for reasons which I shall hereinafter state — said care must be greater when dealing with our civil law as it is conceived in the Code of said name.
My principal objection to the majority opinion is of a constitutional and methodological order. Simply stated it is not proper to do what the majority opinion does to reach its conclusion. As I will try to prove, such methodical error is so dangerous that because of its size the minimum good that the decision offers does not represent adequate compensation to the prejudice it inflicts to our juridical order. I also have objections of a juridico-technical nature to the majority’s opinion, which I shall point out later.
The juridical problem presented by the case at bar is simple. So is the provision of our positive law involved therein. As this case revolves around § 11 of the Civil Code, 31 L.P.R.A. § 11, it is convenient to reread it at the outset. Although this case deals only with the first paragraph, since this section is short, and for the sake of clearness and precision, we copy it in full here. Section 11 of the Civil Code reads:
“The forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed.
“When such acts are authorized by diplomatic or consular officials of the United States abroad, the formalities established for their execution by the laws of the United States shall be observed.
“Notwithstanding the provisions of this and the preceding section, prohibitory laws relating to persons, their acts or property, and those which relate to public order and to good morals shall not be held invalid by reason of laws, decisions, regulations or agreements in force in any foreign country.” (Italics ours.)
*906As we shall refer later to what textwriters have written on the matter, it is convenient also to clarify that § 11 of the Spanish Civil Code is identical to ours except that as is to be expected, where ours reads “diplomatic or consular officials of the United States” the Spanish Code refers to the diplomatic or consular officials of Spain and where ours talks about the laws of the United States the Spanish Code refers to the Spanish laws.
This case deals, in essence, with an 18-year-old minor who was emancipated in New York. The emancipation was executed (1) by written document, (2) by his mother with patria potestas (his father was deceased), (3) with the express consent of the minor, (4) before two witnesses and (5) the document was duly authenticated before a notary.
The emancipated minor and some of his brothers and sisters sold some real property located in Puerto Rico. The Registrar recorded the title but entered a curable defect that it was not shown in the execution of the emancipation deed that the requirements as to form and solemnities prescribed by the State of New York, where the emancipation document was executed, had been complied with.
The Registrar is correct. The defect is curable and the proper thing to do is to cure it. We have so decided béfore. Rojas, Randall & Co. v. Registrar, 27 P.R.R. 20 (1919). There we said at page 22:
“We agree with the registrar that neither does the document show that the necessary formalities as to form and solemnities prescribed by the laws of the State of New York for the conveyance of real property have been complied with. The interested party must prove this and his failure to do so constitutes a curable defect which does not prevent the recording of the instrument.” • '
Yet, what does the majority opinion decide? The majority opinion, in spite of the clear and conclusive provision of § 11 of the Civil Code, in the sense that “The forms and *907solemnities of contracts, wills, and other public instruments are governed by the laws of the country in which they are executed,” states — the opinion — that that provision of the Code is of an optional nature, that is, discretionary; that it is not mandatory. The opinion of the majority decides that as the emancipation executed in New York complies with the formal requirements prescribed for emancipations executed in Puerto Rico, therefore it is subject to registration without any curable defect.
As I said before, I have two main objections to the opinion of the majority. One is juridico-technical in nature. That is, as a question of law, the majority opinion is, from my viewpoint, erroneous. I will try to prove it with the same authorities cited by the majority, besides adding others. The other objection, I said, is of a constitutional and methodological nature. In discussing the latter I will try to prove why it is not justifiable or advisable to do violence to our system of civil law as said opinion has done, but that, on the contrary, it is prejudicial to our law. Let us- turn first to the objection of law I raise to the opinion of the majority.
In this aspect the controversy revolves around the nature of § 11 of the Civil Code. The opinion of the majority maintains that said section is discretionary. I maintain it is mandatory. Many of these conflicts of interpretation could be avoided if at the outset the law itself was read. That is why we have copied said section at the beginning of this opinion. Notice that § 11 does not say that the instruments may be governed by the laws of the country where they are executed but says that they are governed by the laws of the country where they are executed. The Code could not have stated it in more clear and positive terms. What the opinion of the majority proposes is not a new interpretation but a new drafting of the section. But the latter is part of the argument we have reserved for the second term.' We are now considering the nature of § 11.
*908The opinion of the majority cites some commentators on civil law and on private international law. Let us see what those commentators say. The first seven I will mention are cited in the opinion of the majority. Let us begin with the internationally known scholar on private international law, Ernst Rabel. Said author maintains the position I hereby sustain, that is, that § 11 is mandatory. In fact, he says that it is imperative in Puerto Rico and Spain. Let us read his own words:
“[U\ocus regit actum acquired, compulsory force. Whatever law may govern the contract in other respects, the law of the place where it is made always determines whether any formalities are obligatory, and if so, which are required. In this shape as imperative, the rule was recognized for a long time in England, and appears in a number of countries.” (Italics ours.)
At the end of that quotation the author places his footnote 5 where he mentions the countries in which the provision herein discussed is imperative. In that footnote he specifically mentions Puerto Rico, Spain, and more than ten other countries of civil law.1
The second author cited whom we shall examine is another commentator of the private international law, Julián E. Verplaetse. This author also concludes that the provision of § 11 is imperative. In the section of his treatise devoted to the conflict of acts in the Spanish law, precisely when discussing the nature of the provision in question, he states the following:
“As we have already said there seems to be no disagreement in that respect between the two authors: the positive Spanish system shall be interpreted as imperative.” Derecho Internacional Privado 487 (1954).
Another author cited in the opinion of the majority is Arthur Nussbaum, Principles of Private International Law *909(1943). Writing about the law applicable to the form of the juridical acts in his aforementioned work, the author says at pp. 148-149:
“In common law as well as in civil law it is a familiar process to sever the ‘form’ from the ‘substance’ of a transaction and, on the basis of this differentiation, to contrast its ‘extrinsic’ and the ‘intrinsic’ validity. Throughout the law of conflicts this issue makes itself felt: in wills, in contracts, in deeds, and in marriages. The question is whether the formalities of a transaction may be governed by a law other than that controlling the substance. Civil law has long, and in a sweeping way, given an affirmative answer. As early as Bartolo the view was taken that the formalities of a transaction and the effects of their non-observance are governed by the law of the place where the transaction was executed (lex loci actus); and this broad proposition, which was later styled locus regit actum, has become well settled and a characteristic feature of continental Private International Law. It has been incorporated in many codes, particularly in the German, Italian, Brazilian, and Japanese.
“Common law has no similar broad rule, but is distinctly moving towards it so the gap between the two great systems has considerably narrowed on this score. Contracts and marriages which are valid under the lex loci actus are recognized as valid in England and the United States.” (Italics ours).
Another work cited is 2 Romero del Prado, Manual de Derecho Internacional Privado (1944). Regarding the imperative or optional nature of the rule “locus regit actum,” which is the one contained in § 11 of the Civil Code of Puerto Rico, in the Spanish Civil Code and in almost all civil codes, he states his criterion that for the forms “ad-probationem” said rule should be applied but not for the forms “ad-solemnitatem”, unless otherwise provided by law. Said author recognizes, then, as it is natural for him to do, that the rule must be imperative or not as provided by law. We already know what the law provides in Puerto Rico, so it cannot be said that Romero states that our § 11 is of an optional nature. On the contrary, the logical conclusion *910of his explanation is that in Puerto Rico the rule is imperative because it is so provided by law. The discussion mentioned appears on pages 302-303 of his cited work.
Another author cited is 2 Adolfo Miaja, Derecho Inter-nacional Privado (1955). After pointing out that “the most generalized doctrine is that of imperativeness,” and after citing in that' sense commentators Lasala Llanas, Trías De Bes, Yanguas and Verplaetse, Miaja concludes: “We believe this opinion is the best adjusted to our positive law. . . .” Pp. 194-195 of his cited work.
In 2 Sistema y Filosofal del Derecho Internacional Pri-vado (1954), Goldschmidt discusses the concepts of form and contents of the instruments. He prefers the optional form of the locus regit actum rule but recognizes that the first paragraph of § 11 “establishes that the forms and solemnities of the contracts, wills, and other public instruments are governed by the laws of the country in which they are executed." (Italics ours.) Op. cit. at 201. He points out that § 11 contains an exception in stating in its second paragraph that when such acts are authorized by diplomatic or consular officials of Spain abroad, the formalities established for their execution by the laws of Spain shall be observed. As we have seen, our Code contains a similar exception.
When Manresa says that the provision of § 11 is optional he is not using the concept in the same manner the opinion of the majority understands it. What Manresa points out is that § 11 allows a Spanish citizen who executes an instrument abroad to comply with, the laws of his country if he executes it before diplomatic or consular officials of Spain. That is, Manresa does not sustain that the application of the section is discretionary. He maintains that § 11, by virtue of its second paragraph allows an exception to the general rule established in its first paragraph. In other words, what he points out is that it is optional for the *911Spanish citizen who executes an instrument abroad to observe the formalities of the country where he executes the document (first paragraph of § 11) or to observe the formalities required by the Spanish law if he goes before a diplomatic or consular Spanish official. I Manresa, Comentarios al Codigo Civil Español 240 (1956). In the 1943 edition, at p. 180. As we have already pointed out, our own § 11 permits a similar option.
José Castán Tobeñas, Chief Justice of the Supreme Court of Spain, has written as follows:
“The Spanish legislation accepts without hesitation, regarding the extrinsic forms of the juridical acts, the old locus regit actum rule, taken from the statutory theory. Section 11, paragraph 1, prescribes that ‘the forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed’. Although the legal expression is incomplete, it should be understood that every kind of juridical act, no matter its form, whether public or private, or oral, are subject to the traditional locus regit actum.
“There is a case in which the formal statute is optional, because the Code says that when the acts ‘are authorized by diplomatic or consular officials of Spain abroad, the formalities established for their execution by the laws of Spain shall be observed’ (§ 11, second paragraph).” 1-1 Derecho Civil Español, Común y Foral 500-501 (10th ed., 1962). In the 9th ed. (1955) 1-1 at 446-447.
Another Justice of The Supreme Court of Spain and also professor of civil law, Francisco Bonet Ramón, commenting §11 writes:
“[I]t is equally understood that I consider natural compliance in the place of execution inasmuch as, in effect, before a Notary of that place hardly a different form could be observed.
“That is why we must understand that the locus regit actum refers, of course, to lawful acts. Within the group of juridical acts, it covers the unilateral acts (for example, wills, termination of a contract for services, etc.) as well as the multilateral . . . .” — Código Civil Comentado 58 (1962).
*912Like the other authors, Bonet Ramón in I Compendio de Derecho Civil 232 (1959) concludes that “Pursuant to the first paragraph of § 11 of the Ciyil Code, the forms and solemnities of contracts, wills, and other public instruments are governed by the laws of the country in which they are executed.”
It may be seen that § 11 because (1) of its clear and express text, (2) its historical origin,2 (3) as well as because of the quasi-universal criterion of the doctrine, is of an imperative nature. That is the common law rule. On the contrary, the Anglo-Saxon common law does not give preference to any rule although it can be said that, in general, as far as successions are concerned the lex rei citae governs. Nevertheless, the common law is getting closer to the civil law rule of locus regit actum. Rabel points out that the majority of the states of the American Union have already incorporated legislatively said norm to their law.3
The majority opinion, therefore, errs in believing that § 11 of the Civil Code in discretionary. Said section is imperative.
II.
Let us now turn to the second objection I make to the majority opinion. This is of a constitutional and methodological order. The majority opinion, as I have pointed out, makes a direct amendment to the Civil Code. In doing so it, of course, violates § 14 of said Code which prescribes that when a law is clear the letter of the same shall not be disregarded under the pretext of fulfilling the spirit thereof. In this case we are not even trying to fulfill its spirit, that is, its intention. That first paragraph of § 11 is explicit and its intention arises clearly from its own letter. If the *913clear and explicit letter of the section were not sufficient— it should suffice — there is its history and the American and foreign doctrines which we have outlined. But what I consider more serious and objectionable in the majority opinion — and this is my main objection — is that it is contrary to our constitutional system and contrary and prejudicial to our juridical system. It is contrary to our constitutional system because it corresponds to the Legislature to make the direct amendments to the written law in Puerto Rico. It is contrary and prejudicial to our juridical system because this is a jurisdiction of civil law and written law and the opinion of the majority introduces in our civil law the crude form of amending without compunction, the Civil Code by means of cases, a more appropriate form for less mature laws.4
In our constitutional system, a democratic-representative one, it is up to the political departments of the government —the Legislative and the Executive — to legislate. This is not the makings of caprice or whim but it is the necessary consequence of the democratic system. To make the law is to make public policy and it corresponds primarily to the Legislative and the Executive powers to make it because these are the two departments of the government which are subject periodically to the endorsement or repudiation of the people through the polls and are thereby directly responsible to the people.5 The supremacy of the written law is uniformly recognized in civil-law countries and even in tradi*914tionally common-law countries when the legislative organ approves legislation, its preeminence is recognized because said legislation represents the most explicit framing of the public policy.6
The primary function of the judicial department is that of passing on cases and controversies and, naturally, in order to do this it must apply the law and construe it whenever necessary. Nevertheless, it is clear that judicial discretion is not absolute. Like everything else, judicial discretion has its limits. If the judicial bodies were relieved from their subordination to the law and they were allowed to make amendments to the latter under color of their advisability it would create the unfortunate situation of losing the certainty of the law and its objective and impersonal value which is in itself a precious guarantee of liberty. The so-called freedom of the judge to modify the law would be essentially resolved in the negation of true liberty, which is the liberty under the law democratically enacted, known by all and applied equally to all.7
*915It is clear that it is not convenient for the state of the law that the Civil Code should lose its certainty and become subject to the determination of a majority of a court, in every occasion, as to which language satisfies it most: If that fashion of applying the law were accepted, would any sentence be left in the- whole Code worth the paper on which it is printed? If the majority of the Court can amend directly the first sentence of § 11, why could it not amend any other provision of the Code? If that were so the Code would no longer say what its own text prescribes. As it is known, the Civil Code deals with institutions extremely important to the lives of individuals and of society, such as marriage, divorce, successions, contracting, family relations, etc. It is convenient for the best public interests that that legislation may only be amended by the Legislature which is the organ responsible to the people.
As it must be known by now, I am not among those who believe'that the law should be applied according to the postulates of the anachronic analytical school. I rather believe in the application of the law as understood by the jurists of the sociological school. As far as our Civil Code is concerned I have said before that we should interpret it with imagination in order to impart flexibility to and revitalize it so as to insure its permanence inasmuch as said legal body is one of our most finished and valuable legislative pieces. Borges v. Registrar, 91 P.R.R. 106 (1964).
However, right there, in Borges, we said that “We are not doing violence to the provisions of .the Civil Code” because there we acted within its provisions. One thing is the judicial application and construction of the written law, which is necessary and permissible in the civil-law countries, and another is the free formulation of the law by the courts in common-law countries, when they lack express legislation regarding the matter under consideration. A cautious judge will always bear these differences in mind when applying *916either the civil or the common law.8 What the majority opinion proposes, as I pointed out before, is not a new interpretation but a new drafting of the law and it does violence to the written test and to the whole spirit embodied in the civil law.
A distinguished scholar of these problems has written:
“There is a great deal of difference between acceptance of a law of precedents largely in-lieu-of statutory law according to the common law pattern and its use in aid of statutory law according to the civil law model.
“Apart from the area of constitutional decision making, statutory law creation is rapidly taking over traditional spheres of the common law. The law creativeness of a judicial decision within a system of largely statutory law is, of course, quite different in scope from that of a decision operating within a system of common law. To the extent that statutes can be formulated without undue verbosity and ambiguity, they are preferable to common law dispositions.” — Silving, work cited in footnote 8 at pp. 195, 241-242.
Some authors propose that the codes be amended so as to give § 11 more flexibility. I believe that such legislative reform of § 11 is desirable. In the United States the Model Execution of Wills Act sanctions the civil rule of locus regit actum and also recognizes the validity of the will executed in accordance with the law in force in the domicile of the testator at the moment of testating. The State of New York has adopted the rule of locus regit actum legislatively and a provision similar to the Model Act. For the corresponding authorities on these particulars see Armstrong v. Armstrong, 85 P.R.R. 387, 393-395 (1962), where we examined these questions carefully. If the Civil Code is to be amended in that respect it would suffice to procure a brief and non-*917controvertible legislative amendment to the first sentence of §11. That can very well be undertaken and obtained by the Department of Justice. To prepare and undertake the task of reforming our written law is one of the functions of the Ministries of Justice. See Cardozo, A Ministry of Justice;9 Castán, 1-1 Derecho Civil Español, Común y Foral 194 (10th ed. 1962); Trías Monge, Derecho' y Justicia en Puerto Rico, 25 Rev. C. Abo. P.R. 417 (1965); Pound, I Jurisprudence 356 (1959); III at p. 600.
That — the legislative amendment — is the correct manner of amending a Civil Code. The Bases Act of May 11, 1888, which authorized the drafting of the Spanish Civil Code by the Codes Commission, in its base 27 provided a system of periodical revisions of the Code and the Spanish Civil Code itself in its Additional Provisions prescribes that the Chief Justice of the Supreme Court and those of the Territorial Audiences shall send, at the end of each year, to the Minister of Pardon and Justice an informative Report of the deficiencies and doubts which the civil courts had encountered in applying the Code, and in the light of the data thus obtained, of the accomplishments attained in other countries which could be utilized, and of the case law of the Supreme Court, the Code Commission shall prepare and send to the Government the reforms which may be convenient to introduce.
Footnote 6 of the majority opinion itself implicitly sustains my position. It mentions how many countries have legislatively amended their codes and laws to reform the legislative provision herein discussed, namely, Italy, Greece, Poland, Germany, Egypt and Czechoslovakia. Even in New York, a common-law jurisdiction, said reform has been made through legislative amendment. However, here, in a civil-law jurisdiction, it is sought to amend the Code with an *918opinion. As an exception, the reform herein discussed has been made in France by jurisprudential action because the French Code does not contain an express provision to that effect, as against the Puerto Rican Code and many others.10
What has been said so far herein should serve to remember that the Court should not function as an “organism of power exclusively.” We constitute a court of law and that imposes on us an inescapable responsibility towards the juridical discipline. We have previously been reminded of this from outside.11 We should remember it from within. Besides the technical, methodological and constitutional aspects I have mentioned, there is another consideration the Supreme Court of Puerto Rico should keep in mind. This is a juridical consideration in the most profound sense of the word. When the Great Discoverer planted his banner in this country he sowed here the seed of the civil law. This is a civil-law jurisdiction. Our Civil Code is one of our major juridical values. That alone should be sufficient for the Puerto Rican Courts and judiciary to safeguard it. It is even more, necessary because we have here a society where the two great juridical occidental systems coexist, the civil law and the Anglo-Saxon12 *919common law. The influx into our law from the common law is massive. This is so, in a great measure, because of the substantial economic power that is enjoyed at present by the countries where that law governs. Of course, that influx is very often convenient. Other times it is not. In the juridical field, whose responsibility is it, if not this Court’s, to watch for those differences?
It is erroneous to apply indiscriminately casuistical techniques of the Anglo-Saxon common law to the elaboration of the civil law. There is no doubt that jurisprudence has its creative role in both law systems but it is necessary that differences be noted. The casuistical technique is useful in the civil law tó fill in gaps and in applying and interpreting the positive rule but it should not be used as a substitute thereof. The Court errs in allowing the direct amendment to the provisions of the Code because possibly it could open the door, unawares, to a practice which with the passing of time could eventually lead to the destruction of our civil law.
Upon meditating on the juridical dealings in Puerto Rico, given the circumstance that the civil law and the Anglo-Saxon common law operate here, and upon considering that “perhaps the future has in store for the juridical culture of your people very transcendental, missions . . . and that a happy synthesis may be accomplished” Castán warns us that “this ambitious aspiration shall require a long way which you should- treat with great prudence and parsimony.”13 I believe that due prudence is absent in the manner used by the majority opinion to decide this case, from which I dissent.
A Puerto Rican scholar of our Law, also concerned about it which should be a major concern of .this Court has written:
*920“The civil law in Puerto Rico is in danger of being devitalized. Vast zones of it . . . have been yielded without valid reason for it, to American jurisprudence. Concepts of common law also color and affect other institutions of our civil law, not because the postulates of our society so require but by sheer indolence or carelessness or undue appreciation of the values involved. The loss or corruption of a country’s law entail consequences as grave as those produced by the dereliction or adulteration of its language. Irrespective of the position sustained regarding the political destiny of this country, it is the responsibility of our bar to safeguard the welfare and enrichment of our juridical institutions. The substitution or even the alteration of figures of the civil law for principles of the common law or of other laws is completely acceptable if as a result, the country’s interests will be best served, but not if the displacement occurs by pure senseless action or uncautious development of the process of juridical assimilation.”14
The foregoing considerations and the knowledge I must presume the members of the Court have of the conditions under which our law evolves should be more than sufficient to appreciate the necessity of preventing that the techniques of the Anglo-Saxon common law, very much part of said law should have the effect, with the lapse of time, of devitalizing and adultering our civil law to the point of making it unrecognizable. Handle this matter with the prudence recommended by José Castán Tobeñas.15
The existence and survival of the civil law in those countries where it coexists with the Anglo-Saxon common law has been and still is object of concern and consideration to jurists of different countries. Besides the four works already cited of Castán,, Trías, Silving and Smith, see Baudouin, “Le Code Civil Quebecois: Crise de Croissance ou Crise de Vieillese,” 44 The Canadian Bar Rev. 391 (1966); Azard, “Le Probleme Des Sources Du Droit Civil Dans La Province *921de Quebec,” 44 The Canadian Bar Rev. 417 (1966); Hood, “Louisiana and the Civil Laxo: A Crossroad in Louisiana History,” 22 La. L. Rev. 709 (1962); Tate, “Techniques of Judicial Interpretation in Louisiana,” 22 La. L. Rev. 727 (1962) : Ortiz, “El Derecho Como Vehículo de Expresión de Nuestra Cultura," 5 Rev. C. Abo. P.R. 133 (1940); Rodriguez Ramos, “Reexamen del Precedente Judicial en Puerto Rico,” 15 Rev. C. Abo. P.R. 7 (1954); Muñoz Morales, Reseña His-tórica y Anotaciones al Código Civil de Puerto Rico, 1947; Muñoz Morales, Compendio de Legislación Puertorriqueña y sus Precedentes, 1948; Rodríguez Ramos, “Breve Historia de los Códigos Puertorriqueños,” 19 Rev. Jur. U.P.R. 233 (1950); Friedmann, W.; “Stare Decisis at Common Law and Under the Civil Code of Quebec,” 31 The Canadian Bar Rev. 723 (1953).
Summarizing: As a question of law the majority opinion errs in concluding that § 11 of the Civil Code is merely optional, because it is imperative. This is sustained by its own clear and explicit letter, its history, and the Spanish and foreign doctrine.
As a matter of public policy, both in the constitutional and the juridical order, said majority opinion is objectionable because it is contrary to our constitutional system of legislating — which assigns this function primarily to the legislative body — and furthermore it injures our civil law system upon introducing the manner of amending the Code by means of cases, an appropriate method for other law systems but which is most unsuitable to ours.
I believe that to procure by means of an opinion a slight reform to § 11 of the Civil Code, the Court should not jeopardize two values of great importance in the Puerto Rican life: (1) our constitutional system of legislating and (2) our civil law and its own and inherent juridical methodology.
Rabel, The Conflict of Laws 488 (1960 ed.). Page 486 of the 1947 ed.
We can briefly trace thus the antecedents of § 11 of our Civil Code: § 11 of the Spanish Civil Code (1888); X Novísima Recopilación, Title 20, Act 18 (1805); III Las Partidas, Title 18, Law 111 (1256-65); the statu-torians, especially Bartolo, Xllth Century.
See Vand. L.R. 533-542. See also Lorenzen in 20 Yale L.J. 432.
Not only are the commentators of civil law of that opinion but very eminent jurists of the Anglo-Saxon common law have concluded likewise. V.g. Pound, “It [legislation] is the characteristic mood of lawmaking in matured systems.” — The Formative Era of American Law 71 (1938).
How necessary it is for a judge to have a clear concept of the politico-democratic theory in order to draw the line between adjudication and legislation! As Frankfurter points out in his already classical essay, the only sure safeguard'preventing the judge from crossing his judicial lines is an alert recognition not to cross it and a trained reluctancy to do so. See Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947). On the politico-democratic theory see Coker, Recent Political *914Thought, Ch. X The Democratic Tradition'1 and Ch. XIX Law and the State (1934); Locke, Second Treatises of Civil Government (1690); Lindsay, A.D., The Modem Democratic State (1943); Mill, John Stuart, Representative Government (1861); Bentham, A Fragment on Government (rev. ed. 1960); Finer, Theory and Practice of Modem Government (rev. ed. 1960); Friedrich, Constitutional Government and Democracy (rev. ed. 1950). See also Hand, L., Sources of Tolerance, 79 U. of Pa. L. Rev. 1, 12 (1930) reprinted in The Spirit of Liberty 66, 81 (Dillard ed., 1952).
Many cases of the United States Supreme Court recognize this. For a recent opinion of said Court see Switzerland Assn. v. Horne’s Market, 385 U.S. 23, 25 (35 U.S. L. Week 4001, 1966). In that case, upon sustaining a legislative piece the Supreme Court used these words: “We see no other way to protect the integrity of the congressional policy. . . .” It has very well been said: “In the day-to-day working of our democracy it is vital that the power of the non-democratic organ of our Government be exercised with rigorous self-restraint.” 335 U.S. 555.
See on this Castán, La Formulación Judicial del Derecho 116 (1954 ed.) and Del Vecchio I Filosofía del Derecho, translated by Recaséns 309 (1929).
Silving, Helen, Stare Decisis in the Civil Law and in the Common Law, 35 Rev. Jur. U.P.R. 195 (1966); Castán, "En Torno al Derecho Civil de Puerto Rico,” 26 Rev. Jur. U.P.R. 7 (1956).
35 Harv. L. Rev. 113.
Romero, op. tit. at 294.
Alonso, Rafael, Comentario al Caso de Hernández v. Cuevas Viret y Asociación de Empleados, decided June 27, 1963, 33 Rev. Jur. U.P.R. 461, 469 (1964).
I say “Anglo Saxon Common Law” when I refer to the “common law” to distinguish it from the common law of Continental-European countries. The Spanish Civil Code itself recognizes the Spanish Common Law, §§ 16 and 1976. Castán’s well-known treatise on' Civil Law is entitled Derecho Civil Español, Común y Foral. A Scots author states the following:
“I decline to regard the expression ‘common law’ as the monopoly of Anglo-American lawyers. All European civilian systems have had their common law, and in the era before codification there was virtually a common law of Europe.” — Smith, “The Preservation of the Civilian Tradition in Mixed Jurisdiction,” in Civil Law in the Modern World, Yiannopoulos, Ed. (1966), p. 3, reprinted in 35 Rev. Jur. U.P.R. 263, 266 (1966). See also 1-1 Castán, op. tit. at 129 (1962); I Sánchez Román, Estudios de Derecho Civil 67 (1899).
En Torno al Derecho Civil de Puerto Rico, 26 Rev. Jur. U.P.R. 7, 17 (1956).
We have already concerned ourselves, although superficially, with our inescapable duty of elaborating “a synthesis” of the two juridical systems mentioned. Barreras v. Santana, 87 P.R.R. 215 (1963) and footnote 1 therein.
Trias Monge, Derecho y Justicia en Puerto Rico, 25 Rev. C. Abo. P.R. 417, 418 (1965).
Work cited in footnote 12.