Hijos y Ajenos: Filiation in Nineteenth-Century Chilean Legal and Social Practice

This paper explores the Chilean Civil Code's transformation of filiation law and legal culture. Promulgated in 1857, the Chilean Civil Code was adopted not only in Chile but also in a half-dozen other Latin American nations and would serve as a model for civil codes in at least five additional countries, making it the most influential codification in the hemisphere. Of the many changes the Code instituted in family law, perhaps none was as significant as the abolition of paternity investigation in cases of extramarital birth. The wide-ranging significance of this reform derived from the fact that a quarter, and subsequently almost 40%, of children in Chile were born out of wedlock.

This paper describes how the Code reconfigured filiation according to the liberal logic of contract, in which kin ties between parents and extramarital progeny shifted from a sacred, natural relationship to a voluntary, contractual one. The contractualization of kinship granted fathers unfettered freedom to recognize or reject illegitimate offspring. And it created a taxonomy of filiation categories associated with differential rights for illegitimate people themselves.

Meanwhile, in giving rise to compulsory and complex new administrative procedures for recognizing (and legitimating) extramarital children, this legal reform engendered the bureaucratization of filiation. Yet the enhancement of the state’s bureaucratic authority is only part of the story, for in carving out new and inalienable paternal rights to freedom, privacy, and personal conscience, the Code ultimately empowered men at the expense not only of women and children but of the courts themselves.