357 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
357
updated codes.
37
Unfortunately, they have seldom provided guidance on
how codification might advance the social values and solidarity ideals of
the welfare state. Moreover, they have never made clear how a code could
possibly regulate legal spheres that require permanent renewal and revision.
The previously described process of decodification has taken place
in a time in which the common-law world has produced statutes for
considerable portions of its private law. Consequently, the contrast between
the two western legal traditions no longer assumes the form of a simple
opposition between codified and judge-made law. Both legal universes now
overlap considerably on the pervasiveness of statutory law.
38
The fact that court opinions have gained prominence has brought
the civil-law realm closer to its common-law counterpart. Of course, even
the highest court’s judicial decisions are not technically equivalent to case
law. They may constitute a functional equivalent, however, inasmuch as they
command attention and are broadly followed throughout the jurisdiction.
39
To a significant extent, this convergence tendency responds to internal
causes within each system. Intellectual as well as economic globalization has
also played a role in this development. It has led the two legal communities
to pay more attention to each other and to borrow not only specific concepts
but also general approaches from each other.
40
Civil, commercial, and procedural codes in Latin America have
borne the imprint of the civil-law tradition from the nineteenth century
onward. They have faced the same problems of obsolescence and irrelevance
as their continental European counterparts.
41
Nonetheless, Latin
American codes have run into special difficulties due to the generalized
institutional weakness and social injustice in the region.
42
They have
37
See, e.g
.,
C
d
. C
iv
.
(Arg.) (2016);
C
d
. C
iv
.
(Ecuad.) (2005);
C
d
. C
iv
.
(Braz.) (2003).
38
See generally
Arthur T. von Mehren,
Some Reflections on Codification and Case Law in the Twenty-First Century
, 31 U.C.
D
avis
L.
R
ev
. 659, 667-68 (1998) (“A quest for greater coherency, comprehensibility, and administrability caused [case-law systems]
to take on qualities traditionally associated with codified systems. . . . American jurists have at times been strongly attracted
by the codification ideal.”).
39
See generally
id
. at 667 (“At the same time, juristic thought in civil-law systems became more teleological in nature and
greater attention was given to the claims of fact-specific justice. This is not to suggest that the legal cultures of codified
and case-law systems do not still, or will soon cease to, differ in significant respects.”)
40
See generally
id
. at 670 (“The experience of the twentieth century makes clear that, as societies and economies become
increasingly complex and interrelated, legal orders need to draw on both the civil-law and the common-law traditions in
thinking about law and its administration. At the level of method and style, the differences between legal orders in the
codification and those in the case-law tradition have diminished and, at the same time, have become more complex.”)
41
See
Merryman,
supra
note 28, at 1868 (“Five basic codes adopted in the nineteenth century—the civil code, commercial
code, code of civil procedure, penal code, and code of criminal procedure—historically dominated positive law in Germa-
ny and France and hence the work of judges in interpreting and applying the law. . . . The process of decodification thus
means more than a formal change in the legislative scheme; a whole ideology of the legal process is being swept away.”).
42
See generally
Pérez Perdomo,
supra
note 10 (underscoring the weakness of the rule of law and the intense social and
economic inequality).