352 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
352
An understanding of how the tradition as a whole hangs together,
along with a requisite antecedent examination of the historical origins and
subsequent development, is an invaluable asset in the process of making
sense of the underlying regimes. Taking this overarching perspective is
especially useful for people trained under a different legal culture, such as the
common law. It enables them to perceive a particular civil-law jurisdiction’s
institutions not as a random assortment, but, rather, as a relatively coherent
set. Through this approach, Anglo-American lawyers may discern in Brazil’s
codification, managerial adjudication, and abstract judicial review the
country’s civil-law heritage, instead of a quaint
praxis
.
One must proceed with caution whenmaking generalizations, precisely
because of the noted variability within the civil law. An even higher degree of
circumspection is in order when considering Latin American legal systems.
The center of gravity of the civil-law tradition lies in Europe, particularly in
Germany and France.
10
Latin American law has evolved on the periphery,
under very particular conditions of economic underdevelopment, fierce
social conflict, and heavy U.S. influence. Consequently, it often operates at
a distance from the European paradigm.
Moreover, Latin America encompasses 20 distinct jurisdictions, which
operate independently of each other, even though they share a transnational
legal legacy.
11
The main challenge in grasping the law of the region is to
perceive the broad parallels without neglecting the particularities. Of course,
the recognition of a unified tradition ineluctably colors the interpretation
of each of the individual legal orders.
At most, the civil law provides a context for the study of Latin
American law. References to that tradition may launch the discussion, but
they certainly should not bring it to an end. They simply prepare the way for
a thorough analysis of the peculiarities of the particular legal systems that
coexist throughout the Continent.
10
See
G
lendon
et al.
,
supra
note 1, at 29 (The French Civil Code of 1804 and the German Civil Code of 1896 “have had
such widespread and lasting influence that they and their accompanying ideologies can be said to have become part of
the contemporary civil law tradition.”).
11
See
Rogelio Pérez Perdomo,
Notas para una historia social del derecho en América Latina: La relación de las prácticas y los principios
jurídicos
, 52
R
ev
. C
olegio de
A
bogados
P.R.
1 (1991) (“La primera y más banal observación es que no existe un sistema
jurídico latinoamericano sino veinte estados-naciones, cada uno con su propio sistema. . . . En sentido opuesto puede
hacerse también la observación corriente de la relativa unidad cultural de la zona.”) (“Obviously, no single, monolithic
Latin American legal order exists as such. Each one of the twenty nation-states has its own system. . . . Nonetheless, the
cultural unity of the entire territory is self-evident.”).