351 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
351
of their specialization. In fact, it occupies a position somewhat analogous to
that of constitutional law in the United States.
5
The civil-law tradition should not be approached rigidly. It is by
no means fixed or uniform, let alone sacred. It encompasses a variety of
constantly evolving legal regimes, which frequently differ in their basic
structure, as well as in their details. These systems of law simply share what
Austrian philosopher Ludwig Wittgenstein calls, more broadly, a “family
resemblance.”
6
In other words, they do not have a common essence, but,
rather, interrelate with each other in a complex manner. They present “a
complicated network of similarities overlapping and crosscutting at all
levels: general and specific.”
7
For instance, a particular jurisdiction may resemble others in that it
officially denies precedential force to decisions stemming from the judiciary,
yet it may diverge from them to the extent that it provides specialized courts
for constitutional and administrative matters. Further, it may share this
latter trait with another group, some of whose members may recognize
judicial precedents. In fact, a few legal orders within the tradition do not
even codify their civil law and many of the rest conceive of their respective
codes so differently that one can hardly speak of a clear convergence.
8
Nonetheless, the various systems of law resemble each other like
family members, who share certain features in a similar way. The entire civil-
law tradition has a characteristic style or flavor, which reflects the mentioned
interconnections. This commonality, which becomes more evident through
a comparison with Anglo-American law, derives from an intense process of
cross-fertilization, as well as from a shared history.
9
5
See
G
lendon
et al.
,
supra
note 1, at 46 (“One of the great links among the ‘civil law systems’ is that the ‘civil law’ was
for centuries, in fact, the most important and fundamental part of the legal system, and is still regarded so in theory.”);
M
erryman
,
supra
note 1, at 6 (“‘Civil law’ is still fundamental law to most civil lawyers.”).
6
L
udwig
W
ittgenstein
, P
hilosophische
U
ntersuchungen
§ 67 (1967) (“Familienähnlichkeiten.”) Wittgenstein explains
that the members of a family do not all share a particular characteristic or group of characteristics. Some resemble others
in the smile, others in the personality, and still others in the tone of voice. They are thus all interrelated without converg-
ing on a single feature, “for the various resemblances between the members of a family: build, facial features, eye color,
gait, temperament,
etc
.,
etc
., overlap and intercross. . . .”
Id
. (“denn so übergreifen und kreuzen sich die verschiedenen
Ähnlichkeiten, die zwischen den Gliedern einer Familie bestehen: Wuchs, Gesichtszüge, Augenfarbe, Gang, Tempera-
ment,
etc
.,
etc
.”).
7
Id
. § 66 (“ein kompliziertes Netz von Ähnlichkeiten, die einander übergreifen und kreuzen. Ähnlichkeiten im Großen
und Kleinen.”).
8
See
M
erryman
,
supra
note 1, at 26 (“[A] civil law system need not have codes: Hungary and Greece were civil law coun-
tries even before they enacted their civil codes: Hungarian civil law was uncodified until Hungary became a socialist state,
and Greece enacted its first civil code after World War II.”).
9
See generally
Part III
infra
(arguing that civil law jurisdictions resemble each other in their approach to codification and
diverge from their common-law counterparts).