Codification: Concepts, Background and Brazil's Experience (A. Ramos Tavares, журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017)

Codification: Concepts, Background and Brazil's Experience*(1)

A. Ramos Tavares,

Full Professor at University of Sao Paulo,

Researcher at PUC/SP and President

of the Advisory Border of the National Council

of Justice's Presidency,

University of Sao Paulo, Sao Paulo, Brazil,

Advisory Border of the National Council of Justice's President,

Sao Paulo, Brazil

Журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017, р. 64-70.

Brazil has a challenging background with codifications. There is a culture of overacting by the lawmaker, with many laws becoming diverse, unique and contradictory. The author addresses the historical emergence of national laws in Latin America until the new Civil Procedural Code was passed in Brazil. The author begins with a conceptual reflection upon the updating of the "codifications" movement in the World.

Table of contents

I. Background and the codification ideal today

II. The beginning of the codifications in Latin America

III. The Brazilian codifications and the sequence of obsolete documents

IV. The New Civil Procedure Code

References

I. Background and the codification ideal today

The idea of a code goes back to ancient times. During that period the codes "consisted of very diverse content and were composed by gathering of various subjects" (Belaunde, Tavares, 2010, p. 5).

A different and innovative idea of codification began in France (Belaunde, Tavares, 2010, p. 5), and it became known as "modern codification." Its main function was to "put order to a particular area of legal knowledge." As we know, it began with strengthening the French Civil Code of 1804 also referred to as "Napoleonic Code" (Belaunde, Tavares, 2010, p. 5).

The French document had an enormous influence on the conception of Law in the countries of Civil Law, in Europe and in Latin America: "The Napoleonic Code had been used as a conceptual basis for preparation and practice of several similar codes. After the French Code we had the Prussian Code (a compilation) and the Austrian Code" (Belaunde, Tavares, 2010, p. 5).

An "outstanding liberal ideological conception" underlies this model of codified law (Belaunde, Tavares, 2010, p. 5). At that time the legislator strived to narrow the reality into legal abstractions. The model of the Law implemented by codifications was illustrated by the formula "All law comes from the state" that F. Geny (1932 p. 70) called "fetichisme de la loi ecrite et codifiee" (fetishism of the written and codified Law). In my work on the interpretation theory I state that, in this conception, "the law began to have only one home, the Codex" (Tavares, 2006, p. 23).

Therefore, it was correct to state that the codification, starting in Europe with Napoleon, was clearly an ideological and conceptual

choice, not only a meeting or systematization of rules concerning the same subject. Liberalism was in its foundations.

But at the same time in Russia a different conception of codified Law was developed. Mikhail Speransky was the mentor of "an action plan to modernize the state and legal systems" (Zor'kin, 2015: 80)*(2). That was particularly important to ensure "the principle of the rule of law over semi-feudal arbitrariness that predominated in the country at that time" (Zor'kin, 2015: 80). So, we can say that this specific model of consolidation was very important to the kind of transformation that was intended to be implemented, due to historical particularities*(3).

This codifications ideas and models were abandoned, but the codifications remain. And they remain as essential legislative instruments. This need occurs by virtue of a proliferation of all western laws today that impose a need for systematization in favor of legal certainty.

New codes bring about the need to organize rules and evidence the "principles of general order that guide all other rules" (Belaunde, Tavares, 2010, p. 6). The demand today is to act in a democratic way. In the case of civil procedure and constitutional procedure codes, this means to foster broad access (democratization).

II. The beginning of the codifications in Latin America

Latin American law could only have arisen autonomously after the independence of the Iberian colonies in the beginning of the nineteenth century. However, a connection with the mother countries remained in the laws after the independence.

The first known Latin America Penal Code was precisely the Brazilian Penal Code of 1830. This Code, that was enacted relatively

quickly, was considered an exception in Latin American culture that still used the laws of the mother Land.

After the independence, "the new states felt no urgency to devote themselves to preparing laws which substituted the civil Spanish legislation" (Rozas, p. 170)*(4).

The Dominican Republic is the most unorthodox case. In 1846, it simply adopted the Napoleon Code in French.

In 1852, Peru established a milestone in Latin America by enacting its first authentic national Civil Code, which is considered the first autonomous American Civil Code (Rozas, p. 173).

III. The Brazilian codifications and the sequence of obsolete documents

The Brazil Commercial Code was enacted in 1850. Despite being almost entirely repealed by the Civil Code of 2002, parts of it still remain in force. Although the Commercial Code has lost the organic nature of codification, sections prepared during the monarchical system more than one hundred and sixty years ago still regulate maritime commerce.

A new Brazil Civil Code was enacted only in 1916. It eliminated the effectiveness of civil laws of the Kingdom of Portugal in Brazil. The codification was carried out almost one hundred years after the independence, demonstrating Brazilian tolerance for outdated rules.

The Water Code of 1934 is another old codification still in force that unlike the Commercial Code maintains its authentic nature. It was enacted during the Provisory Government of Getiilio Vargas, at the time when neither environmental nor water shortage concerns existed.

Likewise, some other important codifications during the term of President Getulio Vargas are still in effect, for example, the Penal Code of 1940, the Criminal Procedure Code of 1941, and the Consolidation of Labor Laws of 1943, all modified with various amendments.

However, in Brazil of today, the need for new codes derives from the imposition of new constitutional and social paradigms.

We have had new constitutions in Brazil in 1946, 1967 and the current Constitution of 1988*(5).

This need of adaptation to the new social and constitutional reality is stated in the Penal Code Bill of Law of 2012. The prerequisites of this Bill of Law also applied to the new Civil Procedure Code: "We are no longer a predominantly agrarian society; we are no longer a society that has little participation in the relationship of nations; we are no longer a society that tolerates discriminatory treatment towards women, minorities, religious beliefs or people with special needs. We now have a democratic society. We are a nation that has changed and currently faces new challenges, new innovations, new concepts and threats. Brazil of 1940 had 42 million inhabitants; today we are approaching 200 million."

The need for a Penal Code reform was consensual in the Parliament and it generated a Bill in 2012. There was a misperception that it would improve public safety. But other issues impeded its approval, for example, the attempt to decriminalize drugs, the legalization of abortion and the punishment for euthanasia.

The New Civil Procedure Code was significantly different with more technical subjects and less opposition from the people. Thus, The Parliament was able to enact the new law.

IV. The new Civil Procedure Code

The New Civil Procedure Code was approved by the new Constitution, which required democratization of the civil procedure. This mainly signifies greater and more qualified access to justice. The grounds are in the prerequisite that gave rise to the new Civil Procedure Code that were described as five goals: "1) to synchronize with the Constitution; 2) to enable judges to render decisions closer to reality; 3) to simplify, solve problems, and reduce the complexity of subsystems, for example, appeals; 4) to promote efficiency of each procedure; e) and, finally, to make the system more coherent."

The democratization and constitutionalization of the procedure is approached in the New Code by means of two elements: (i) a system of procedural principles, and (ii) the "co-participatory premises"*(6) (democratization).

Regarding the core of the system of principles, it manifests "The General Part in the first 12 articles that serve as basis for a unified system, which should always be interpreted using democratic constitutionalism as the basis for procedural fundamental rights."

Regarding the co-participatory premises, they elaborated "The co-participation idea [...] based on the principle of the dynamic contradiction and on essential participation of interdependent parts of the procedural environment [...] forged by constitutional principles, with cooperative behavior of all involved and with no protagonists."

From the point of view of the new procedural model, the Code created an innovative Law based on judicial precedents. The Law of the court precedents became the basis of the Brazilian Law. This is surprising for those (including me) who have the opinion that a new Code is not enough for such a huge change, because this new model changed the way to comprehend and practice Law, and it also demands a new way to teach Law. The ambitions of the Code could even be considered radical. I believe that the change imposed by the New Code will be slow and gradual, because its dimensions surpass the bounds of civil procedure.

References

Belaunde D.G. and Tavares A.R. (2010). Por que um codigo constitucional? RBEC - Revista Brasileira de Direito Constitutional. Belo Horizonte. Ano 4. No. 16. Pp. 1-13.

Bonavides P. (2015). Codigo Brasileiro de Processo Constitucional. Available at: http://www.oab.org.br/arquivos/anteprojeto-codigo-de-pr0cess0-c0nstituci0 nal-1336318980.pdf (accessed 07.05.2016).

Bossert G.A. (2004). A influencia do Codigo Civil Frances sobre 0 Codigo Civil Argentino com referenda a outros Codigos da America Hispanica. Revista da EMERJ - Escola da Magistratura do Rio de Janeiro, v. 7, n 27. Pp. 125-136.

Brito A.G. (2004). Lavenir de la codification En France et en Amerique latine. Palais du Luxembourg, 2 er 3 avril. Available at: https:// www.senat.fr/colloques/colloque_codification/colloque_codification8. html (accessed 06.05.2016).

Ferrajoli L. (2006). О estado de Direito entre о passado e о futuro, in Costa, P. and Zolo, D. (org.). О Estado de Direito: historia, teoria, critica. Tradugao Carlo Alberto Dastoli. Sao Paulo: Martins Fontes.

Lopes J.R. de L. (2000). О Direito na historia: liqoes introdutorias. Sao Paulo: Max Limonad.

Passos E. and Lima, J. A. de O. (2012). Memoria Legislativa do Codigo Civil. Brasilia: Senado Federal. Available at: http://www.senado.leg.br/publicacoes/MLCC/pdf/mlcc_vi_edi.pdf (accessed 06.05.2016).

Rozas F. and Carlos J. (2005). El Codigo de Napolein у su influencia en America Latina: Reflexiones a proposito del segundo centenario, in El derecho internacional en tiempos de globalization: libro homenaje a Carlos Febres Pobeda. Merida (Venezuela): Universidad de los Andes, Publicaciones del Vicerrectorado Academico. Pp. 151-190. Available at: http://eprints.sim.ucm.eS/6554/1/CODIGO_DE_NAPOLEON_Y_SU_INFLUENCIA.pdf (accessed 06.05.2016).

Tavares A.R. (2006). Fronteiras da hermeniutica constitucional. Vol. 1. Sao Paulo: Metodo (Colegao Professor Gilmar Mendes).

Theodora Jr., H., Nunes, D., Bahia, A. M. F. and Pedron, F. Q. (2016). Novo CPC: Lei 13.105 de 13.03.2015: fundamentos e sistematizaqao. за ed. Sao Paulo: Forense.

Wambier T.A.A., Conceigao M.L.L., Ribeiro L.F. da S. and Mello R.L.T. de. (2016). Primeiros Comentarios ao Novo Codigo de Processo Civil. 2a ed. Sao Paulo: Editora Revista dos Tribunals.

Zor'kin V. (2015). Civilization of Law and Development of Russia. Moscow: Norma.

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*(1) Lecture for the participants of the VI St. Petersburg International Legal Forum, St. Petersburg, 18 May 2016, Speransky's Round Table.

*(2) The first volume of 1830, for example, systematized the Laws from 1649 to 1675. Authentic volumes are exposed at the Library of St. Petersburg's University.

*(3) At the National Council of Justice, in Brazil, a Commission, under my presidency, was created by the National Council's President, Justice Lewandowsky, to consolidate all rules edited by the National Council. It was considered necessary to systematize all rules (not by year, but by subject), so it could be better known and implemented by all law operators.

*(4) Originally: "los nuevos Estados no sintieron ninguna urgencia en dedicarse a la elaboration de leyes que reemplazaran la legislation civil espanola".

*(5) The period of military dictatorship after the Coup of 1964 lasted until the democratization, in 1985.

*(6) Expression used by Theodore Jr., Nunes, Bahia, Pedron, 2016. P. 45.