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Chilean Criminal Code analysis and it’s contribution to the resistance to

social change.

Hypothesis about the 1874’s Chilean Penal Code as social instrument: historical contextual analysis and
normative analysis of the era, a comparison with the current implementation.
Paulina Mujica Andrades

For some years now, important questions have arisen about the functioning and legitimacy of the
political, judicial, educational, health, social security systems in our society, among others. The civic
questioning is a response to a global questioning. In our case, it occurs cyclically since the independence
process to the present day. These cycles have a similar structure: they start with social vindication,
resistance or repression by the Government, and then continue with the legal legitimation of this
repression, to finally end with a civic resignation to this new legal state. As a result, they hinder the
formation of a civic identity. This constant energetic and ideological resistance between these elements
provokes an endless vicious circle.

The cyclical process of repression and legitimization is analyzed from different angles by different
authors, and each author provides its own interpretation. However, how does this cyclical process manage
to restrict the changes that new generations demand and need? Where can this restriction be observed?
Where the state resistance legitimization can be observed? The process of self-legitimization of the state
invites us to look for traces in our institutions to confirm or not the reality of this process. In this sense,
the Chilean Criminal Code and its associated laws constitute some interesting documents to analyze and
detect these traces.

Is the Penal Code the system’s repressive instrument towards the people? This and other
questions will be developed in the present essay. The social context around the development of the Penal
Code will be discussed in detail, as well as the Code’s basic concepts and its structures, and how the
procedural code has an influence or not in the legitimacy analyzed by Salazar and Pinto (1999).

The Code in context

Chile's independence did not mean an absolute break with the Spanish Crown institutions, since
many aspects of the country's colonial political structure would remain, a sort of "transition" to
independence. To devote efforts to be independent on more specific areas such as the legislative-criminal
area required a longer time for Latin American nations. In this sense, Iñesta (2003), a Spanish criminal
attorney who studied the Chilean Penal Code history, describes that until the independence, America was
governed by the laws of the Indies. These were a set of rules dictated in the continent with a clear sense
of "guardianship of Indians which indicates both the regulation of crimes and penalties" (2003:297). In
addition to these rules, the old Spanish code "Las Siete Partidas" (13th century) and their complementary
texts were applied. Unlike the previous one, these rules were centralist and were dictated in Spain, and
then were brought to America.

Once the independence took place, several constitutional systems were tested, a process that
ended with the imposition of the Conservative Constitution of 1833, by Diego Portales and Mariano
Egaña. This text was in effect until 1925 and would mark the liberal period of the country (when the
Penal Code was passed). It was a period "characterized by a balance between the power of the President
of the republic and the political groups" (Iñesta, 2003:297). However, passing the Constitution did not
form the Chilean legal body completely. What was happening about criminal matters? Iñesta perfectly
described a latency period or intermediate period between 1810/1818 to 1874:

“Independent governments began to enact special laws on certain criminal topics which were in effect over
the Spanish laws preferably, otherwise, they were aimed to the adaptation of laws to the needs and, above
all, to national idiosyncrasies"(2003:297).

Interestingly, these penal laws passed during the intermediate period had an authoritarian and
repressive touch. On the one hand, as Rivacoba indicates (1991:19), censorship laws were immediately
enacted about treason and gambling. There were other enacted rules that updated theft and robbery
crimes, which was always a priority within the oligarchy. There was no need to rework the entire criminal
law because the rules inherited from the old regime, the Spanish Crown, were ideologically in line with
those of the elite. Citizens were not yet united around the social demands that would emerge at the
beginning of the 20th century, therefore, a more complex system was unnecessary in the eyes of the elites,
whose only idea was to control citizens and to safeguard private property.

The liberal progress in Chilean politics started a penal reform process, since for them it was
important to punish but also rehabilitate criminals (National Library of Chile. 2014). Supposedly, a new
Penal Code would reflect liberal ideas on punishment, however, these liberal ideas had to be confronted
with an extremely conservative period in which a punitive and corrective vision was a priority. Then, the
development of a penal code would not be an easy task. This is how an endless number of proposals that
would never see the light of day began. As highlight we can mention the proposal made by Manuel
Carvallo, who drafted a 550-article draft.
It is worth mentioning that during this period, as described by Salazar and Pinto (1999), the State
began to establish political guidelines regarding internal decision-making, while keeping the civilian
population aside. In the eyes of the oligarchy, for both the State and the creation of the Code, it was
necessary a certain elite with sufficient knowledge to translate its needs into a Code. Thus, and
institutionalization of the elite’s position of power would be produced, "in almost the same terms as the
Imperial State legalized the will of the King," (Salazar and Pinto. 1999:35). This oligarchy would be the
group destined to create a Penal Code for Chile, as part of the "complex rhetorical maneuvers of
legitimization" (Salazar and Pinto. 1999:36).

During this period, the social question was in development, a complex and determining factor for
the Penal Code development, as Gonzalo Vial (1891:496) indicates, the social question1 is "the most
important historical fact in our turn of the century." Or as Morris indicates, "the concept of social
question has a definite historical or chronological connotation (...). It refers to an initial period of social
tension, labor protests, and intellectual effervescence" (2000:234). These elements were and addition to
the precarious living conditions, which caused that people will demand solutions to these problems.
Therefore, the first public policies are born. In this tug-of-war between the social question and the
oligarchy's effort to ensure nothing changes, Vial (1891:5) described: "(...) finally, the suffering ones used
violence against society, and society responded with repression." This repression was reflected in the
construction of an instrument that would determine the form of repression and would legitimize this
repression even to this day: the creation of the Penal Code.

Finally, in 1870 a commission was formed which concluded in 1873 with the drafting of the
definitive Code, and although "they were given an official mandate to take the Belgian penal code of 1867
as a model, however, they decided to work with the Spanish Code of 1848 as base" (Iñesta. 2003:303). The
Code, passed in 1874, would reflect the Spanish needs, maintaining a system marked by repression and by
the Spanish conquest. The Code would not represent an evolution, both historical and as Chileans, and it
would be a system repeated to this day.

Inside the Code


The wording of the Code was largely, if not totally, a reproduction of the Spanish Code of 1848,
as the same articles, wording and order remained the same. It emerged as an "effective instrument to
defend the established order, with particular punitive rigor in matters concerning the defense of religion,

1
Historical Chilean period between 1880-1920, marked by social inequality which mobilized the society of the time
to put inequality, working conditions, social security, among others, as government's priority. This caused social,
economic, and political transformations.
power itself and socio-economic grounds" (Iñesta. 2003:315). These were very important areas for the
crown and for Chile’s powerful classes, as these allowed them to control all social effervescence. In the
Chilean Code, two important influences can be distinguished: a) the moral and religious scope of the
Spanish Code; and b) the preventive tendencies described by Jeremías Bentham in the Belgian code.

Although different, both ideas were applied complementarily. The punitive aspect of the Spanish
is reflected in the relevance of punishment as the only recourse, i. e., the Code does not model, it does not
instruct, it only punishes. The prevention of the Belgians integrates the public exposure to punishment
for committing a crime. Punishment and "prevention" are marked by behavioral modification based on
fear and social recrimination. It can be observed that the Code contained sentences that included the death
penalty up to the use of chains or shackles (Chilean Penal Code. 1874: art. 24). Even, the law expressly
ordered that the death penalty had to be carried out with publicity (Chilean Penal Code. 1874: art. 82).
These regulations were not applied from a complementary educational process; therefore, it is important
to clarify that at the time none of this was questionable. In those years, only a sector had access to
education, then, the tendency to commit crimes is observed among low-income groups: labor force and
the poor. Although, population control is not only marked by what the code regulates, but rather by what
it does not regulate. It is in absent crimes, those not present, where it is possible to fully appreciate the
bias that favors one side of society and punishes the other, building a Code for all, but against a few.

At that time, the priority were those crimes committed against external and internal security of
the State (Código Penal de Chile. 1874: art. 106 and 121 onwards), which were punished with severe
penalties. The latest are especially interesting, as they pursue to safeguard and maintain the government
stability: “those who, at gunpoint, rise against the legally constituted government in order to promote a
civil war, to change the constitution of the state, or the form of governance, to deprive them of their
functions or to prevent them from entering into the exercise of them (…)." However, the articles are
progressively acquiring another color: "those who promote rebellion and their principal warlords"
(Chilean Penal Code. 1874: art. 122) or "those who ring or order bells and other instruments to excite the
people or provoke an uprising and those who, for the same purpose, address to the crowd in a speech or
distribute printed material among them" (Chilean Penal Code. 1874: art. 123). Taking into consideration
that the country was initiating an independent process and autonomy from the Spanish Crown, the
overprotection of internal politics made sense to a certain extent. Nonetheless, clear abuses of social
control gradually appeared, as well as signs of repression and excessive control by the State. Even
manifestations were legitimized as a constitutional aggression. Considering that then the “social question”
reached its peak, the situation was aggravated by the legitimization of silencing the population.

The most noteworthy article is art. 126, which severely punishes "those who rise up publicly with the
purpose of impeding the enactment or enforcement of laws (...)" (Chilean Penal Code; 1874: art. 126). That
is, those who raise their voices to claim their right to say no over the legislative process would be severely
punished. And so, crimes associated with serious penalties continue to happen successively regarding the
maintenance and acceptance of the State’s normativity of laws and the respect towards the rulers, who at
that time were not representative of the population. Since only a small, high-purchasing population could
vote, Chile won the universal vote in 1874, same year when the Code was passed and with months of
difference after the approval of the Penal Code, which represents a historical yet sad coincidence, as
Chileans were not able to alter the current situation due to the restrictive code.

Another point that serves as evidence of the social restriction and repression is that apart from
avoiding the uprising of social groups, the Chilean Criminal Code regulations are essentially based on the
protection against damage to private property. Crimes against property, such as theft, robbery, and
usurpation of land have a lengthy and orderly regulation (Chilean Penal Code, 1874: arts. 432-462). This
is not a surprise, since these interests are very close to the oligarchy and, in addition, these crimes are
commonly committed by people from the lowest and most underprivileged classes of society. Noteworthy
too is the fact that protection of private property is more important than any other crime, even treason:
the penalties are higher even compared with a homicide (Chilean Penal Code. 1874: art. 391) which has a
penalty, which may be lower than robbery with violence (Chilean Penal Code. 1874:433). And, in addition
to that, the omission of very serious faults, such as the damage provoked to masses, to companies, to
organized groups, etc., that is, the current so-called white collar crimes, have been totally and completely
omitted in the original Code as well as in the current reforms, The only reference about punishment for
economic crimes corresponds to the payment of a fine with a maximum value of 5,000 Chilean pesos
(Chilean Penal Code. 1874: art. 25.). However, there are not preventive punishments with social
recrimination as applied to all the other crimes. There is an evident discrepancy in regulations regarding
one social group versus the other as regulations are significantly unequal and they encourage social
segregation, perpetuating the state of inequality.

Finally, and responding to the initial hypothesis, the Penal Code is effectively a reflection of the
defense of the system towards society, but a more exhaustive analysis is required to conclude and abstract
all contextual information. Even so, from the analysis carried out, it can be inferred that the Code provides
objective elements that represent it as a repressive, restrictive, and resistant instrument to social changes,
both by the explicit authoritarian articles and by simply omitting crimes and their respective penalties.
The profound important of this lies in the fact that the Code analyzed in this document remains valid in
Chile without the modification of even a comma, as if we were in 1873, which transforms a historical
analysis into a profound social stagnation for more than 140 years.
Any changes coming up? Although an amendment was made to the Code of Criminal Procedure, which
modified the rudimentary and inquisitive procedures and moved to the popularly known structure of oral
proceedings, it is still complementary to the Penal Code of 1874. There have been modifications with
respect to new crimes, updating of sentences, elimination of the death penalty -deleted in the seizure of
military justice but not abolished- but the articles described in this document are still maintained.
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