The history of civil law tradition and the brazilian processual law

short essay about our nearness to common law

Authors

  • Ricardo Evandro Santos Martins Universidade Federal do Pará. Instituto de Ciências Jurídicas.

DOI:

https://doi.org/10.54275/raesmpce.v11i1.72

Keywords:

Civil law tradition, Common law tradition, Legal positivism, Discretionarily, New Civil Procedure Code

Abstract

The essay intends to briefly develop a history of the civil law tradition and also intends to raise questions about the proximity between the Brazilian legal tradition and the common law tradition. To accomplish this task, its methodological approach is based on the paradigm of philosophical hermeneutics developed by Hans-Georg Gadamer. The essay has the following general assumptions: 1) the tradition of civil law was born by the reception of the Justinian Code; 2) this tradition also has roots in the jurisprudence of the Holy Roman Empire and the Legal Historical School; 3) but, essentially, the civil law tradition is based on the doctrine of the Exegesis School and then comes to have strong influence of the Pure Doctrine of Law, by Hans Kelsen, especially with respect to the tradition formed in Brazil; 4) Brazilian practices and legislation are currently close to common law, such as the New Code of Civil Procedure and attempts to reform the Code of Criminal Procedure; 5) Brazilian Master’s and PhD’s courses strongly influenced the change of mentality and the redirection of our legal tradition when it brought the institute of “judicial precedent” as a central concept of legislative reforms and judicial practices. Our specific hypothesis are: 1) The proximity of our tradition to the common law tradition may could be risky for the constitutional foundations of the Brazilian Federal Constitution/1988.

Author Biography

Ricardo Evandro Santos Martins, Universidade Federal do Pará. Instituto de Ciências Jurídicas.

Doutor em Direito pelo Programa de Pós-Graduação em Direito da Universidade Federal do Pará – UFPA. Professor Adjunto de Teoria do Direito e História do Direito na Faculdade de Direito, do Instituto de Ciências Jurídicas - ICJ-UFPA

Published

2019-06-21

How to Cite

Martins, R. E. S. (2019). The history of civil law tradition and the brazilian processual law: short essay about our nearness to common law. ACADEMIC JOURNAL OF THE SUPERIOR SCHOOL OF THE PUBLIC PROSECUTION, 11(1), 195–211. https://doi.org/10.54275/raesmpce.v11i1.72

Issue

Section

Artigos Nacionais