An Endogenous Theory of Property Rights by Peter Ho

Author:Peter Ho [Ho, Peter]
Language: eng
Format: epub
ISBN: 9780367234324
Barnesnoble:
Publisher: Taylor & Francis
Published: 2019-02-14T00:00:00+00:00

3. Notaries and property registration in Mexico

The notarial profession spread across the Americas with the expansion of the Spanish empire during the sixteenth and seventeenth centuries. Levy (2010) notes they are sometimes considered to have played the simple role of record-keeper, and were commonly known as scribes or escribanos. In the act of recording names and deeds, they served the function of legitimating the conquest and colonization of the Americas. Columbus’ scribe was part of the first landing party in the ‘New World’ in 1492, and Hernan Cortes began his career as a scribe (Téllez and Mario 2011).

In Mexico, notarial practice was profoundly shaped by this Spanish legacy after independence. Early constitutions and governments of Mexico maintained a majority of rules already in place (Castillo and del Pérez 1979). Governments throughout the nineteenth century continued to update regulations of the profession with both practical goals (regulating the number of notaries) and idealistic goals (ensuring their ‘moral rectitude’). For example, a law in 1840 set fee limits for various activities on the part of scribes. A major change was later undertaken during the brief reign of the Emperor Maximilian in 1865, when the term ‘notary’ was adopted along with a law heavily influenced by existing European norms. This law distinguished notaries from scribes by the type of actions they could perform, with the emphasis on carrying the ‘public faith’ (Castillo and del Pérez 1979). The history of the notarial practice in Mexico has been used to demonstrate the resilience and adaptability of the institution more generally (Téllez and Mario 2011).

Mexico is a federalist country, but has had a centralized political system at various points in its history. It is not surprising that the regulation of the notarial profession has been subject to periodic changes associated with fluctuations between federalism and centralism. Castillo and del Pérez (1979, 34) argue, ‘when the system has been more federalist notarial matters are local, when the regime has been centralized, notarial functions are general, applied in the whole country’.1 Under Article 40 of the Mexican Constitution of 1917, the power to regulate notaries was assigned to the states. Pedraza (2004) analyzes the diversity of state laws governing notarial practice in Mexico and argues that there are three components of notarial regulation consistent across states: first, that notarial activities are related to public order; second, that the notary is a trained lawyer; and third, that the government can intervene in appointing notaries.

There is a notable diversity across states in Mexico with respect to the supply of notaries, the fees they charge for services and outcomes such as processing times. Gonzalez, Sánchez Mayoral, and Hernández Alva (2012) report on the variation in the rate of notarial penetration across Mexican states and find there is less than one notary per 100,000 people in Tlaxcala and more than 10 per 100,000 people in Campeche, despite similar levels of variation in their earnings in each place. Additionally, survey data show substantial variation in the outcomes that depend in part on notarial

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