Zeitschrift Aufsätze

Bernardo B. Queiroz de Moraes (Sao Paulo/Brazil)*



1 Among the traditional branches of civil law 2 , family law is certainly the one that has been the most visibly affected by the major changes undergone by contemporary society 3 . The crisis this subsystem faces is of such magnitude that not even its key idea (“family”) is clear (most textbooks avoid any attempts at a definition because of its polysemic nature 4 ).

2. V. Roppo, Diritto privato, 4ª ed., Torino 2014, p. 30. (...) 3. Cf. R. Zimmermann, Codification: history and present significance of an (...) 4. Cf. W. B. Monteiro – R. B. Tavares da Silva, (...)

2 Nevertheless, efforts are underway in Brazil to redefine through legislation the traditional notion of family by placing emphasis (and reevaluating) certain aspects of the phenomenon. Without a doubt, the most prominent among such aspects is “affection”, especially in light of the recent bills drafted for the purpose of entirely repealing book four of the 2002 Brazilian Civil Code and replacing it with a “Family Act” (Senate Bill No. 470/2013, which generally follows House of Representatives Bill No. 2.285/2007 5 ) 6 . Today, affection is considered a “fundamental principle” (“guiding value” 7 ) of the family (Article 5, Section IV of Senate Bill No. 470/2013 and Article 5 of House of Representatives Bill No. 2.285/2007) 8 . What is new about the concept is that it is construed as one of the pillars of the very notion of family 9 (given that its relevance in determining the new conception of family has been advocated for decades) 10 . In a nutshell, a sentiment (affection) has been elevated to the status of a principle alongside more traditional principles such as the dignity of the human person (Article 5, Section I of Senate Bill No. 470/2013 and Article 5 of House of Representatives Bill No. 2.285/2007), which is one of the foundations of the Federative Republic of Brazil (Article 1, Section I of the 1988 Brazilian Constitution) 11 .

5. Both bills received the support of the Brazilian Institute of (...) 6. Two other bills are currently under consideration in the National (...) 7. A. A. Barbosa, Por que estatuto das famílias?, in: Direito (...) 8. Cf. M. Berenice Dias, Manual de direito das famílias, 7ª (...) 9. Cf. P. L. Netto Lôbo, Código Civil comentado XVI – (...) 10. H. Levy-Bruhl, Aspects sociologiques du droit, Paris 1955, p. 147: (...) 11. For a critique on the subject, cf. W. B. Monteiro (...)

3 On the one hand, it is not clear whether the emergence of this principle comes as a consequence of the need to justify (for reasons of practical convenience) the detachment of a subject that has traditionally been kept within the civil code system for the past century. On the other, it has not been settled whether uncoupling the book on family law from the rest of the Brazilian Civil Code stems from the imperatives of our time (in which case the purpose of the separation would be to create a microsystem that would purportedly ensure “a more agile and fact-conscious justice system” 12 ). If the first hypothesis is correct, the detachment will be artificial (and therefore undesirable); should the second proposition be true, the uncoupling would contribute towards an improved understanding of the subject. Thus, it is relevant to investigate the alleged autonomy of family law vis-à-vis the 2002 Brazilian Civil Code and the Brazilian legal system as a whole. In other words, the study inquires into whether it is convenient to constitute family law as a microsystem apart from the Brazilian Civil Code.

12. Cf. Justification of the Bill. (...)

1 Canon Law and the Autonomy of Family Law

4 Among the various branches of civil law, family law was historically the last one to have its autonomy recognized (within the codification system) 13 .

13. S. Patti, Il diritto civile tra crisi e riforma dei (...)

5 Originally, the reason for this belatedness was that family law, which was centered on the institution of marriage, was regulated for centuries by canon law 14 . On the issue of marriage, the distinction between ius canonicum and ius civile was so clear-cut and precise that a renowned Portuguese legal scholar felt compelled to justify (in a separate item) the treatment of marriage in his civil law textbook 15 as recently as the nineteenth century. Today, religious marriage is clearly independent from its civil law counterpart, although the former may produce civil effects 16 .

14. Cf. W. Müller-Freienfels, The problem of including commercial law and (...) 15. M. A. Coelho da Rocha, Instituições de direito civil I, (...) 16. Regarding this subject, it must be pointed out that Article (...)

6 Long before the influence of canon law became decisive, however, the autonomy of family law in legal systems that adopted secular marriage was far from settled. The Romans, for instance, did not consider family law a specific branch of the law (in other words, they did not develop a “ trattazione sistematica della strutura e dell’organizzazione del gruppo designato con questo nome 17 – “systematic arrangement of the structure and organization of the set of norms designated by that name”), notwithstanding their definitions of “family” 18 and “matrimony” 19 , as well as their rather lengthy treatment of certain related institutions, such as marriage ( nuptiae , matrimonium ), betrothals ( sponsalia ), dowry ( dos ) etc. (several books of the Digest, under the influence of Christianity, were dedicated to those subjects).

17. E. Volterra, Famiglia (diritto romano), in: ED 16 (1967), p. (...) 18. In various senses (according to the evolution of the Roman (...) 19. A frequently mentioned source is Modest. 1 reg., D. 23, (...)

7 More recently, the method adopted to incorporate the subjects that typically characterize “family law” into the systematic structure of the French Code civil (one of the first modern civil codes) is significant: following the tripartite division (persons – things – actions) set forth in the Institutes of Gaius, the Code included those topics in Title V of Book I (“ des personnes ”), but stopped short of bundling them into an independent system. Notably, the French system was structured around the concept of ownership and avoided any intermediate categories between the individual and the State 20 .

20. Cf. W. Müller-Freienfels, The problem (nt. 14), p. 112; W. (...)

2 Caught Between Worlds: Public Law and Private Law

8 Another dilemma involved (and still involves) defining whether the norms that regulate family law belong (at least predominantly) in the field of public or private law 21 (some have argued that family law belongs in the field of public law or that it is, at the very least, an “ institution de droit privé orientée vers le droit public ”, that is, “a private law institution oriented towards public law” 22 ). Evidently, only the latter argument would justify the inclusion of the subject matter in a civil code.

21. Cf. G. Solari, Storicismo e diritto privato (1940), Span. trans. (...) 22. R. Savatier, Du droit civil au droit public a travers (...)

9 Consequently, the task of classifying family law was clearly a difficult one in the eighteenth century 23 . One may gain some perception of the challenge from the approach adopted by C. Wolff 24 in one of the most important legal treatises of the time (“ Jus naturae methodo scientifico pertractum ”) 25 . In it, the prominent German philosopher (who was a contemporary of I. Kant – see below) unsystematically covers various points of family law in several chapters by randomly merging topics such as marriage, cohabitation, sodomy, bestiality, pederasty, chastity, education of minors, bigamy, betrothal, parental rights etc. (and enumerating corresponding rights, duties, crimes, penalties, principles etc.).

23. For a brief account regarding the factors that led to (...) 24. Regarding the author and his contribution to legal development in (...) 25. Jus naturae methodo scientifico pertractum VII – De imperio privato (...)

10 This feature of legal scholarship on family law influenced early codification efforts such as Part II (essentially on public law) of the 1794 ALR ( Allgemeines Landrecht für die Preußischen Staaten ), which presented a disorderly sequence of topics. What is currently denominated “family law” was regulated primarily in Title I (marriage), Title II (parental rights) and Title XVIII (guardianship and curatorship) alongside other topics such as nobility rights (Title IX), the rights and duties of the Church (Title XI), the rights and duties of the State (Title XIII), the public treasury (Title XIV), delict (Title XX) etc. Remarkably, the expression “ Familienrecht ” (Title IV – “ Von gemeinschaftlichen Familienrechten ”) was used, although it did not carry its current meaning.

11 On the whole, the systematic arrangement of the ALR derives from the notion that the family is “an instrument of the utilitarian sovereign, the family being seen as serving the felicity of the citizen as well the state’s population” 26 . Not coincidentally, Part II of the ALR begins by stating the rules regarding marriage and parental rights – precisely the part that regulates the relations of private individuals as members of a society-community – as opposed to Part I, which deals with a body of rules that is more individualistic in nature. Albeit unlikely, it is possible that the rules of family law were intentionally left a somewhat haphazard lot in order to avoid the direct influence of canon law 27 .

26. W. Müller-Freienfels, The problem (nt. 14), p. 115. (...) 27. On this subject, see W. Müller-Freienfels, The problem (nt. 14), (...)

3 Toward the Systematization of Family Law: from Pufendorf to Wolff

12 This state of affairs did not preclude academic efforts to arrange the rules of family law into a distinct branch of civil law from the seventeenth century onward. One must keep in mind, however, that the development of a systematic approach to family law was a rather slow process that went through clearly defined stages and only reached its consolidated form between the late eighteenth and early nineteenth century.

13 In fact, it is possible to identify two intermediate stages between hotchpotch regulation of family relations and genuine systematization of “family law” 28 : clustering closely related subjects and explicitly articulating a fundamental idea that could unify them into a coherent whole.

28. While the debate regarding the adequate definition of a “system” (...)

14 S. Pufendorf (a German legal scholar notorious for masterminding one of the first attempts to develop a “general system, blending rational deduction and empirical observation”) had clearly achieved the first stage by the second half of the seventeenth century 29 . More specifically, he devoted the greater part of Book VI of his most famous work 30 to two subjects that are fundamental to family law: marriage (Chapter I) and parental rights (Chapter II). Notwithstanding the significance of this approach 31 , giving S. Pufendorf the credit for having “conceptualized” and systematized family law would be an overstatement 32 , the reason being that he failed to single out the fundamental idea that compelled him to group those chapters into a single book (despite the fact that the notion of “family” is recurrent throughout Book VI) 33 . On the other hand, the inclusion of the topic of Chapter III (persons subjected to the power of another, such as servants and slaves) at the end of Book VI within the more general framework of the “family” is decidedly artificial 34 . Furthermore, had the term “family” been meant to serve a systematic purpose within the context of the work, there would certainly be an explicit reference to that effect (as was the case for various other terms) 35 .

29. F. Wieacker, Privatrechtsgeschichte der Neuzeit (1967), Eng. trans. by T. (...) 30. De jure naturae et gentium libri octo, Lund 1672. (...) 31. A. B. Schwarz, Zur Entstehung (nt. 13), pp. 603 e (...) 32. Cf. H. Coing, Savigny und die Deutsche Privatrechtswissenschaft, in: Ius (...) 33. “Sequitur, ut investigemus tum originem & naturam imperii humani, tum (...) 34. S. Pufendorf justifies the inclusion of the chapter as follows: (...) 35. “Pufendorf did not allot a single collective heading to the (...)

15 It is well to emphasize that a mere grouping of topics akin to the family without clearly defining a core idea and establishing autonomy in relation to other branches of private law does not qualify as a “system” in the strict sense of the word. More importantly, even if a broad definition of “system” were to be adopted, account must be taken of the fact that such topics had already been grouped in the Digest of Justinian. Remarkably, books 23 through 27 of the sixth-century work grouped topics such as betrothals (D. 23, 1), the ceremony of marriage (D. 23, 2), dowry (D. 23, 3-5), donations between husband and wife (D. 24, 1), dissolution of marriage (D. 24, 2-3), management of property during marriage (D. 25, 1-2), recognition and maintenance of children (D. 25, 3), unborn children (D. 25, 4-6), concubinage (D. 25, 7), guardianship and curatorship (D. 26, 1 through D. 27, 10).

16 Evidence to support the claim that S. Pufendorf did not intend to effectively systematize family law lies in the fact that by the end of the eighteenth century no other major work had adopted the scheme he devised, despite the influence his overall work exerted on the subsequent evolution of legal scholarship. A case in point is a slightly later work by C. Thomasius that was admittedly influenced by that of S. Pufendorf 36 . Following a general exposition of “ societas ” (Book III, Chapter I), it addresses “ societas conjugalis ” (Chapters II and III) 37 , “ societas paterna ” (Chapter IV) and “ societas herilis ” (Chapter V). The fundamental idea is clearly not the “family” (which was not regarded as a separate branch of the law), but “ societas ” instead (in the general sense). In fact, the idea of “ societas ” was of great importance to the “new system of natural law”. In that context, the family was conceived as an intermediate category between the (private) corporation and the State 38 .

36. Institutiones jurisprudentiae divinae III, Frankfurt 1688. Despite this influence, his (...) 37. “Incipiemus autem a simplicibus societatibus, quoniam ex his componitur civitas. (...) 38. J. Schröder, Recht (nt. 28), p. 187. (...)

17 Among later attempts to group the topics that currently make up family law, perhaps the most comprehensive was that of G. Titius . In his main work 39 , he divides Book VI (which comes immediately after the books on the law of obligations) into twenty topics related to the notion of family 40 . Once again, however, the term “ societas ” (in the general sense) and not “family” has a key systematizing function 41 (which explains why family law was not construed as a separate branch of law). Put another way, despite having grouped related topics, G. Titius did not propose an idea (“family”) capable of consolidating them into a coherent whole.

39. Juris privati romano-germanici ex omnibus suis partibus, puta jure civile (...) 40. I – De sposalibus; II – De conjugio; III – (...) 41. Unsurprisingly, there is an entry in the thematic index for (...)

18 A conceptual shift, however, is already discernible in a work by J. G. Darjes 42 where the “family” is expressly assigned a systematic (even if somewhat limited) function. In his account of what he termed “ ius familiae ” (Section IV, Chapter I), J. G. Darjes justifies the adoption of that criterion and explains his understanding of “family” 43 . Despite the significance of this new approach (which was not mentioned in any of his other major works 44 ), the text of the chapter clearly shows that the notion of “family” remained somewhat entwined with the concept of “ societas ”. Topics such as “ societas matrimonialis ”, “ societas paterna ” and “ societas herilis ” are discussed in a different section of the work (Chapters II and III of Section III), preventing them from being adequately grouped.

42. Institutiones iurisprudentiae universalis in quibus iuris naturae socialis et gentium (...) 43. “Connectuntur personae, quatenus in earum altera aliquid est, quod fine (...) 44. See, for instance, Institutiones iurisprudentiae privatae romano-germanicae, Jena 1749. (...)

19 As mentioned previously, despite having consolidated these developments and providing the basis for further advances, C. Wolff (whose influence on G. Hugo and I. Kant is considerable 45 ) also failed to make a definite break with earlier doctrine. Nevertheless, he did have the merit of attempting to develop a more systematic approach 46 by clearly separating “ imperium privatum ” from “ imperium publicum 47 and placing topics that are typical of family law within the former (despite not being able to create a specific category for “family law”). In any case, C. Wolff is clearly hesitant in his work, which is why he does not assign the “family” a systematic function 48 . In that context, marriage is conceived as “ societas conjugalis ”.

45. See the following item. (...) 46. This he did in the third part of the Institutiones (...) 47. The distinction was the basis of an earlier work– Jus (...) 48. In fact, the concept of “family” only appears in §877 (...)

4 Systematic Approaches to Family Law by Hugo and Kant

20 G. Hugo 49 deserves the credit for both grouping related topics (akin to family law) and proposing an idea (“family”) that could unify them into a coherent whole. Published in 1789, his remarkably brief textbook on Roman law is arranged into five sections: property law (“ ius in rem ” – “ Realrechte ”), personal obligations (“ ius in personam ” – “ persönliche Obligationem ”), family law (“ Familienrechte ”), rules of inheritance (“ Verlassenschaften ”) and procedure (“ Proceß ”) 50 . The only topics covered in the chapter on family rights are marriage and parental rights. Incidentally, the author underscores the challenge of classifying a subject that hovers between personal rights and property rights 51 .

49. Institutionen des heutigen römischen Rechts, Berlin 1789. (...) 50. W. Müller-Freienfels, The emergence (nt. 20), p. 37. (...) 51. Institutionen (nt. 49), p. 59. (...)

21 Written in his youth, the textbook does not clearly state the grounds for this new systematization. Quite likely, his intention was simply to follow the sequence of the topics in the Digest of Justinian 52 and adapt their content to the law of the time, which seems rather evident when one considers the arrangement of the Digest. Although lacking an explicit systematization, after the books on introductory topics ( Prota – D. 1 to D. 4), the Digest covers subjects primarily related to the law of property (D. 5 to D. 11), the law of obligations (D. 12 to D. 22), family law (D. 23 to D. 27) 53 and the law of succession (D. 28 to D. 38). Procedural rules, which permeate the entire spectrum of Roman law, are covered in the last part of the textbook.

52. Cf. P. Cappellini, Systema iuris II – Dal sistema alla (...) 53. All the books on family law are located in the (...)

22 In later studies, however, G. Hugo was reluctant to assert the independence of family law. Thus, for instance, in another textbook he published on the same subject thirty-seven years later 54 , the topic concerning family relations (which now included guardianship and curatorship) was placed under the heading “ ius in rem 55 . In this particular case, his reluctance may have been caused by the need to adapt the content of the Roman sources (especially the Institutes of Justinian) to the law of his time 56 .

54. Lehrbuch der heutigen römischen Rechts, Berlin 1826. (...) 55. Family law is the subject of the second part of (...) 56. Cf. Lehrbuch (nt. 54), pp. 15 and 16. Cf. W. (...)

23 In various other works unencumbered by this concern, G. Hugo explicitly adhered to the tripartite division of private law devised by I. Kant : the law of persons (“ Personenrecht ” – which corresponds to the Kantian category of a “personal right that is real in kind”), the law of property (“ Sachenrecht ” – which corresponds to the Kantian category of “real right”) and right of credit (“ Recht der Forderungen ” – corresponding to the Kantian category of “personal right”) 57 .

57. Lehrbuch des Naturrechts, als einer Philosophie des positiven Rechts, 2ª (...)

24 At this early stage, the theoretical basis needed to conceptualize and systematize family law was formulated by I. Kant 58 . Indeed, in one of his most important mature works ( Die Metaphysik der Sitten , published towards the end of the eighteenth century), he did not hesitate to move away from the German law in force at the time and affirm the autonomous nature of family law (by emphasizing only the subjects that involved relations between private persons and creating a specific legal category for them).

58. Cf. P. König, §§ 18-31, Episodischer Abschnitt, §§ 32-40, in: (...)

25 He went about his task in a peculiar way. He divided his universal doctrine of right into two parts: private right and public right. As to the first part (“ das Privatrecht vom äußeres Mein und Sein überhaupt ” – “the private right of the external mine and thine generally”), the second chapter (“ von der Art etwas Äußeres zu erwerben ” – “the mode of acquiring anything external”) is divided into three sections: real right (“ Sachenrecht ”), personal right (“ persönlichen Recht ”) and, finally, “personal right that is real in kind” (“ von dem auf dingliche Art persönlichen Recht ”) 59 . This last section focuses on the key issues of “family law” (“ das Eherecht ” – “conjugal right”, “ das Elternrecht ” – “parental right”, “ das Hausherren-Recht ” – “household right”). Clearly, the objective was to solve one of the most troublesome issues regarding the adequate systematization of family law: whether the rights attached to it were real or personal in nature 60 .

59. On the other hand, a real right that is personal (...) 60. Indeed, the classification of subjective rights hinges on the fundamental (...)

26 I. Kant goes on to explain that this “personal right that is real in kind” consists of “the right to the possession of an external object as a thing, and to the use of it as a person” (“ dieses Recht ist das des Besitzes eines äußeren Gegenstandes als einer Sache und des Gebrauchs desselben als einer Person ”) and that the relations involved are those of a community of free beings that constitutes a “household” 61 (he refers to a “domestic society” further ahead). By his own account, this conception amounted to “a new phenomenon in the juristic sky” (“ neues Phänomen am juristischen Himmel ”), a veritable “ stella mirabilis 62 , notwithstanding the fact that it had always been tacitly in use in accordance with the Science of Natural Law 63 .

61. I. Kant, Die Metaphysik (nt. 59), p. 276. An extensive (...) 62. I. Kant, Die Metaphysik (nt. 59), p. 358. (...) 63. I. Kant, Die Metaphysik (nt. 59), p. 361. (...)

27 However questionable this category may be 64 , the fact remains that a clear distinction was drawn between family law, on the one hand, and property rights and personal rights (law of obligations), on the other. Furthermore, although family law was unequivocally classified as a branch of private law 65 , its ambivalent character (which hinges on whether the nature of the rights attached to it is real or personal) was reinforced and still presents a challenge when attempting a systematization of family law (as is currently the case with the 2002 Brazilian Civil Code).

64. Cf. HKK/Michaels, vor §241, n. 42 (especially nt. 319). (...) 65. See generally on these passages from I. Kant, cf. F. (...)

5 The Systematic Organization of Family Law in Nineteenth-Century Germany: From Heise to the BGB

28 It was not long before civilian scholars perceived the significance of this idea and began to incorporate this “new” branch of civil law into the codified systems they proposed (an increasingly recurrent topic among late eighteenth-century and early nineteenth-century German scholars, specially, and European jurists, generally).

29 One of the first to do this was A. Heise (in the early nineteenth century) 66 . He structured his system in six books: “general theory”, “real rights”, “obligations”, “real-personal rights”, “inheritance law” and “ in integrum restitutio ”. Consistent with Kantian conceptual categories 67 , the fourth book covers what the author denominates a “ dinglich-persönliche Rechte ” (“real-personal right”) 68 or a “ persönliche Rechte auf dingliche Art ” (“personal right of a real kind”) (he explicitly refers to a “ Familienrecht ” elsewhere 69 ) and divides the subject into three sections: marriage, parental rights and guardianship 70 . The “Hugo-Heise system” went on to become the “pandectist system” par excellence 71 , which propounded “an arrangement of the subject matter accomplished through inductive reasoning, that is, by consideration of the content of individual rules in order to arrive at increasingly general concepts, as well as classifications or groupings that exhaust the subject (…) the reasoning most befitting this type of system is not deductive, but inductive” 72 .

66. A. Heise, Grundriss eines Systems des gemeinen Civilrechts zum Behuf (...) 67. He is explicit on this point. Cf. A. Heise, Grundriss (...) 68. Remarkably, in the first edition of this work (1807), A. (...) 69. A. Heise, Grundriss (nt. 66), p. 17. (...) 70. To this day, these topics comprise the core of family (...) 71. P. Cappellini, Systema iuris II (nt. 52), p. 4. (...) 72. N. Bobbio, Teoria generale del diritto, Torino 1993, p. 207: (...)

30 Put simply, it was I. Kant who laid the groundwork in German legal culture for the system of thought that would influence the structure of the Bürgerliches Gesetzbuch (BGB) decades later 73 (incidentally, the BGB exerted one of the most potent influences upon the systematic approach adopted in the 2002 Brazilian Civil Code). Although discussions on the legal nature of family law did not draw much attention at first (the debate was to take hold in the twentieth century), the conceptual categories created by I. Kant were consolidated in the work of F. Savigny 74 and influenced nineteenth-century pandectist scholarship 75 (F. Savigny , who was widely believed to aspire to become “the Kant of jurisprudence” 76 , certainly came into contact with the work of A. Heise 77 ).

73. G. Solari, Storicismo (nt. 21), p. 54. (...) 74. Cf. HKK/Schmoeckel, vor §1, n. 21; G. Solari, Storicismo (nt. (...) 75. Cf. E. Volterra, Famiglia (nt. 17), p. 726; W. Müller-Freienfels, (...) 76. F. Beiser, The german historicist tradition, Oxford 2011, p. 224. (...) 77. The influence of the systematic approach adopted by A. Heise (...)

31 The system put forth by this renowned German jurist rests on the notion of “legal relation” ( Rechtsverhältnis ) 78 , conceived as a “ Beziehung zwischen Person und Person, durch eine Rechtsregel bestimmt 79 (“relation between person and person, determined through a rule of law”). Among the various kinds of legal relations, the “family relation” (“ Familienverhältnis ”) is the one that comprises relations concerning marriage, parental authority and kinship 80 . These relations he collectively denominated “family” (“ Familie ”), and the legal institutions such relations refer to he called “family law” 81 (“ Familienrecht ”). He also emphasized that family law is one of three main classes of rights (the other two are the law of property and the law of obligations) 82 . The influence of I. Kant is evident.

78. System des heutigen römischen Rechts I, Berlin 1840, p. 6 (...) 79. System I (nt. 78), p. 333. (...) 80. System I (nt. 78), p. 342. (...) 81. The influence of this conception is evident in the work (...) 82. System I (nt. 78), p. 345. Cf. S. Buchholz, Savignys (...)

32 This notion of legal relation, save for minor modifications, became the cornerstone of the (still in force) BGB system 83 and was explicitly consolidated in the work of B. Windscheid 84 . This legal scholar divided private law into two branches (one relating to property relations and the other to family relations) and subdivided property relations into two groups (legal relations over things and legal relations between people), thereby setting them apart from inheritance law 85 . Hence the sequence of the topics in the BGB: the “general part” deals with the three fundamental concepts necessary for any legal relation (“persons”, “property” and “legal relation” – regulated in the first three sections), while the special part governs specific legal relations (the law of obligations, the law of property, family law and inheritance law) 86 . The arrangement, which was consolidated by the time of G. Hugo 87 , became a typical feature of the “ Pandektensystem ”, as it came to be called, and has been an integral part of the structure of civil codes ever since 88 (which typically feature an independent body of “family law” within the system 89 ).

83. HKK/Michaels, vor §241, n. 42; H. Coing, Savigny (nt. 32), (...) 84. Lehrbuch des Pandektenrechts I (1862), Ital. trans. by C. Fadda (...) 85. Lehrbuch I (nt. 84), pp. 40 and 41. (...) 86. The codification of family law in a distinct book within (...) 87. J. Schröder, Recht (nt. 28), p. 187. For an opinion (...) 88. J. P. Schmidt, Pandektensystem, in: The Max Planck Encyclopedia of (...) 89. J. P. Schmidt, Pandektensystem (nt. 88), pp. 1239 and 1240. (...)

6 The Systematic Organization of Family Law in Brazil

33 The influence of this arrangement on the system adopted by the Brazilian civilian tradition is evident. In the second half of the nineteenth century, the tripartite division created by I. Kant was adopted by A. Teixeira de Freitas in his Consolidação das Leis Civis 90 (or Consolidated Civil Laws, i.e., a consolidation of the existing national laws) and was later incorporated, with minor changes, to his Esboço (literally, a sketch for a draft civil code). The special part of the Esboço is divided into three major areas: “on personal rights in family relations” (Book I, Section I), “on personal rights in civil relations” (Book I, Section II) and “on real rights” (Book II). The Brazilian jurist believed, however, that “this arrangement of the subjects does not correspond to that which our spirit regards as the most perfect” (Introduction to the Consolidação das Leis Civis , p. CXV) and observed that the systematization of family rights “is a kind of innovation” (p. CXLIV) 91 . Although he did not explicitly mention I. Kant (he may not have applied his ideas consciously), he was greatly influenced by the German scholarship of the first half of the nineteenth century (such as F. Savigny – cf. supra) (cf. e.g. pp. CXLIV sqq.).

90. Consolidação das Leis Civis, 3ª ed., Rio de Janeiro 1876. (...) 91. For similar reasons, an innovative approach is also the mark (...)

34 The 1916 Brazilian Civil Code followed the division into a general and a special part. The latter was systematized into four books: family law, property law, the law of obligations and inheritance law. The 2002 Brazilian Civil Code maintained this structure but changed the sequence of the books in the special part. From a systematic perspective, however, the main novelty was the inclusion of an additional book on commercial law (Book II), evidently influenced by the 1942 Italian Civil Code (although the autonomy of commercial law in Brazil is somewhat less apparent). As far as family law is specifically concerned, the fact that the 2002 Brazilian Civil Code divides the subject into two distinct subheadings entitled “Personal Rights” and “Property Rights” is quite significant 92 . In fact, this division implies a direct reference to the dual nature of the subject, as I. Kant had already pointed out (by asserting that family law was, in fact, a set of “personal rights of a real kind”).

92. Through the initiative of Clóvis Couto e Silva. Cf. M. (...)

35 For a long time, this systematic coherence remained unchallenged. Occasionally, however, debates on whether family law is a branch of public or private law surfaced 93 . The reason is twofold: certain prerogatives ascribed to the family (as a collective unit) belong to the field of public law and the individuals who compose this unit are be bound “ par une sorte de service public ” (“by a kind of public service”) 94 . In other words, the family is an institution of public law or, more specifically, a group (between the individual and the State) “ auquel l’individu sacrifie une partie de ses libertés , mais que représente le bien commun des membres du groupe 95 (“to which an individual sacrifices a portion of his or her liberties, for it represents the common good of the members of the group”).

93. One of the first scholars to raise this issue in (...) 94. R. Savatier, Du droit civil (nt. 22), p. 19. (...) 95. R. Savatier, Du droit civil (nt. 22), p. 23. (...)

36 This idea clearly failed to take root, but even its most radical proponents did not advocate the need to remove family law from the civil code (with the exception of advocates of the socialist legal system, referred to below). This was so because no one was challenging the organic unity of the rules of family law. The eighteenth-century collage (cf. supra) of topics of family law interspersed with rules of public law (such as criminal offences) was no longer a reality in the twentieth century. The focus was not on criticizing the largely private nature of the family, but on affirming its role in society instead.

7 Family Law Conceived as a Microsystem

37 Indeed, the Brazilian debate regarding the convenience of preserving family law as part of the Civil Code is very much associated with the recognition of microsystems within larger legal structures.

38 Since the second half of the twentieth century legal scholarship has gradually come to terms with the idea that “l’unità del sistema giuridico nasconde una pluralità di micro-sistemi, ciascuno dotato di una propria logica e di un proprio ritmo di sviluppo” 96 (“behind the apparent unity of the legal system there is a multitude of microsystems, each with its own logic and its own pace of development”). There are significant differences between microsystems and the traditional systems enshrined in the main codes of law (among which civil codes play a prominent role). A code, according to the modern understanding of the subject, is a collection of various complex legal texts that form the basis for a branch of law, are arranged according to a particular system and follow specific principles 97 . These characteristics hold true for the 2002 Brazilian Civil Code currently in force, whose core principles (among others) are ethical treatment, social relevance and operational application 98 .

96. N. Irti, L’età della decodificazione, 4ª ed., Milano 1999, p. (...) 97. On some of those characteristics, cf. R. Zimmermann, Codification: history (...) 98. M. Reale, O projeto (nt. 92), pp. 37 sqq. (...)

39 A striking feature of microsystems is their interdisciplinary nature, which prevents their assimilation into one of the traditional branches of law. The Brazilian Consumer Protection Code is a case in point 99 . It contains roughly one hundred articles that govern issues of civil law, administrative law, criminal law and even civil and criminal procedure (54 rules belong to the field of private law and 64 to that of public law). It is, indeed, a typical (micro)system – it has principles of its own and could hardly be incorporated into any of the traditional branches of law. Moreover, a fragmented and piecemeal treatment of the subject in the various existing codes would also be inconvenient from a practical standpoint. Thus, the only possible solution was to adopt a new model of lawmaking that could accommodate a “cross-discipline between private law and public law” 100 .

99. J. P. Schmidt, Zivilrechtskodifikation in Brasilien – Strukturfragen und Regelungsprobleme (...) 100. C. L. Marques, Introdução ao direito do consumidor, in: A. (...)

40 Likewise, some have claimed that the particular logic family law follows is an obstacle to its integration into a civil code, since “modern civil codes incorporate rules of [family] law that do not strictly belong to civil law, for they govern issues of public law, or commercial law, or even criminal and procedural law” 101 . According to such views, family law is clearly interdisciplinary 102 .

101. F. C. Pontes de Miranda – R. M. A. Nery, (...) 102. This is also one of the reasons why regulating family (...)

8 The Interdisciplinary Essence of the New Systematic Arrangement of Family Law

41 However, the prevalence of precepts of civil law can hardly be overstated 103 . In fact, this distinctive trait can be easily perceived in the two bills regarding the enactment of a “Family Act” currently under the consideration of the National Congress. Of the 303 Articles that comprise Senate Bill No. 470/2013, 137 refer to topics of substantive law currently governed by the 2002 Brazilian Civil Code, while 156 deal with “process and procedure”, a subject already governed by the Brazilian Code of Civil Procedure. In other words, the bill has two autonomous sets of rules that could easily remain incorporated within their respective codes. Thus, the interdisciplinary nature of the branch of law under consideration is far from evident, because there are no apparent disadvantages that could arise from the separate treatment of the two sets of rules. Nor is it clear that the amalgamation of substantive and procedural rules “facilitates the prompt dispensation of justice by simplifying procedures and promoting judicial economy” (Justification of the Bill). Were this true, the argument would be applicable to other areas of law (e.g. the substantive rules regarding possession and the procedure for its defence – including purely procedural rules – would have to be structured jointly).

103. S. Puleo, Famiglia (nt. 21), p. 7; F. C. Pontes (...)

42 Specifically regarding procedural rules, the Justification of the Bill states that they constitute “specific rules” designed to resolve family conflicts and promote orality, swiftness, simplicity, procedural economy and facilitated reconciliation. However, these principles permeate the whole structure of civil procedure (they generally apply to cases that involve a “dispute over assets” 104 ) and some are applicable even in civil law. In fact, the 2002 Brazilian Civil Code professedly seeks to “overcome the attachment of the [1916] Brazilian Civil Code to legal formalism”, aims to “overcome the individualistic nature of the law in force” and intends to “establish normative solutions that facilitate the interpretation and application of the law” 105 .

104. See, for example, Articles 3º, §§2º and 3º (prevalence of (...) 105. M. Reale, O projeto (nt. 92), pp. 37, 38 and (...)

43 The convenience of uncoupling the rules of substantive family law from the Brazilian Civil Code could be justified if there were a jurisdiction specialized in family law. There may be benefits in providing specialized judicial training in order to educate judges who would decide such cases “more sensibly”. However, the bills do not propose any significant procedural changes 106 and, even if they did, it is noteworthy that in countries that created a specific jurisdiction for family law (separate from the common jurisdiction), the dependence of family law on the rules of the civil code in fact increased (an apparent paradox) 107 . In other words, the enactment of special procedural rules alone does not justify the creation of a Family Code. As those are the only types of rules covered by the bill (Senate Bill No. 470/2013), the proposal fails to demonstrate the interdisciplinary nature of and the need to create a separate microsystem for family law.

106. The recently enacted 2015 Brazilian Code of Civil Procedure does (...) 107. W. Müller-Freienfels, The problem (nt. 14), p. 113. (...)

44 House of Representatives Bill No. 2.285/2007 faces the identical objections, as its structure is very similar to that of the above-mentioned Senate Bill. House of Representatives Bills No. 699/2011 and No. 6.583/2013 do not aim to create a microsystem for family law.

45 To sum up, there are no grounds, from a systematic standpoint, for the removal of the book on family law (Book IV) from the 2002 Brazilian Civil Code or the creation of a separate microsystem, because the bills under consideration are not of an interdisciplinary nature (in stark contrast to the situation in the eighteenth century, when family law was in fact composed of an array of civil, criminal, administrative and procedural rules, among others).

9 The Demise of a Codified System in Socialist Law

46 In fact, maintaining the norms regarding family law within the civil code would ensure systematic coherence, since the codification as a whole is subject to the fundamental principles of private law (the civil code guarantees the unity of the legal framework and the continuance of the values it enshrines 108 ). In other words, “the main objection to microsystems is the implied loss of a codified system; although each book of the code has institutions of its own, they are intertwined within an organized and regulated system of general rules contained in the corresponding general part” 109 .

108. On the issue, cf. N. Irti, L’Età (nt. 96), p. (...) 109. Legal opinion given by Regina Beatriz Tavares da Silva to (...)

47 Undeniably, the idea of creating a “Family Code” is not new and was actually implemented in countries that belonged to the socialist legal system 110 (and in fact constitutes an almost inevitable feature of socialist ideology 111 ). According to this view, the inclusion of “family law” as a specific branch of civil law in nineteenth century codifications was a convenient way to consolidate a set of rules that for centuries had been regulated by the ius canonicum . At the dawn of the twenty-first century, however, the detachment of the body of family law from the rest of the civil code would allegedly promote a more adequate response of the law to social transformation 112 . It would thus elicit “effective public participation in drafting the law” 113 (within a microsystem in which “ la forza regolatrice delle sue norme si esercita su una realtà preesistente e socialmente determinata 114 – “the regulatory power of its rules is applied to a preexisting and socially determined reality”) and uphold fundamental principles of public law. Doubtlessly, this would once again pose the old question of whether family law belongs in the field of private or public law 115 . Furthermore, a separate code might regulate intra-family relations more adequately 116 .

110. Cf. O. Gomes, Novas tendências do direito de família, in: (...) 111. Z. Kühn, Development of comparative law in central and eastern (...) 112. Cf. P. Rescigno, Il codice (nt. 102), p. 162 sqq: (...) 113. A. Junqueira de Azevedo, O direito pós-moderno e a codificação, (...) 114. V. Roppo, Diritto (nt. 2), p. 871. (...) 115. Cf. P. Rescigno, Il codice (nt. 102), pp. 164 and (...) 116. W. Müller-Freienfels, The problem (nt. 14), p. 109. (...)

48 According to socialist ideology, separating family law from codified civil law came as a consequence of acknowledging the supranational character of the family and attempting to have the State shape society 117 (by emphasizing the public nature of the family) according to the model adopted by the USSR 118 . Significantly, a key element of Soviet law is its educational function, which was essential to produce a new collective consciousness based on the alleged moral superiority of that legal system 119 .

117. Specially the youth, with regard to the family – N. (...) 118. There are historical reasons as well for uncoupling family law (...) 119. R. David, Le droit soviétique I – Les données fundamentales (...)

49 Nevertheless, the supranational character of the family is not a feature most Western societies readily accept 120 . On the contrary, the prevailing view is that family law is the branch of civil law most susceptible to the peculiarities of each country 121 (notwithstanding the tendency to accept supranational regulation of certain topics, such as adoption 122 ). The fact that it has not been included in the various projects for the unification and harmonization of the law of states that belong to the same economic bloc should not come as a surprise (the European Union offers the clearest example of this phenomenon 123 ).

120. On this issue, cf. M. Antokolskaia, Family law and national (...) 121. On these issues, cf. W. Müller-Freienfels, The problem (nt. 14), (...) 122. Cf. the Hague Convention of 05.29.1993, enacted in Brazil by (...) 123. With regard to the European Union, the most encompassing of (...)

50 Since the Middle Ages, proponents of the separation of family law have stressed that family relations derive from the ius naturale and that they exist regardless of recognition by positive law 124 (“ la famiglia è una realtà pregiuridica , che esiste indipendentemente dal diritto 125 – “the family is a prelegal reality that exists irrespective of the law” – it is the “ seminarium rei publice 126 ). Lastly, another argument often mentioned is that the pace of development of family law is very different from that of other branches of civil law (and the most susceptible to rapid social change). In Brazil, specifically, Book IV of the 2002 Brazilian Civil Code (which deals with family law) is the one that “most intensely suffers from a lack of systematic harmony” 127 .

124. This opinion was consolidated by F. Savigny, System I (nt. (...) 125. V. Roppo, Diritto (nt. 2), p. 871. (...) 126. Cic. de off. 1, 54: “Nam cum sit hoc natura (...) 127. M. Reale, O projeto (nt. 92), p. 106. (...)

10 The Advantages of Preserving the Systematic Arrangement of the Civil Code

51 However, the danger of this vision is that it may potentially deprive family law of its “ funzione ordinatrice ” (“organizational function”) and constrain it to “ inseguire i nuovi fenomeni cercando di offrire i desiderati strumenti di regolamentazione e di tutelare i soggetti più deboli 128 (“be aware of new phenomena in order to provide the desired regulatory instruments and protect the weakest subjects”). It is important to emphasize that a civil code exerts a cohesive force within a legal system. As such, it prevents disaggregation, maintains coherence and ensures greater certainty in the application of the law 129 (by inhibiting casuistry abuse, notwithstanding the importance of case law 130 ).

128. S. Patti, Il “principio famiglia” e la formazione del diritto (...) 129. F. Siebeneichler de Andrade, Da Codificação – Crônica de um (...) 130. Cf. R. Zimmermann, Codification: history (nt. 3), pp. 114 to (...)

52 Today, a code is primarily the internal reference of a legal system 131 . Codification is no longer expected to be complete, nor is it meant to cover every subject of private law 132 . Essentially, it must “regulate the more stable legal categories” and “let specific legislation regulate new categories”. Thus, despite its “incompleteness”, a code remains at the center of private law 133 . “ Modern disillusionment with codification can, to a considerable degree, be ascribed to exaggerated and unrealistic expectations 134 .

131. Cf. J. P. Schmidt, Zivilrechtskodifikation (nt. 99), pp. 155 sqq. (...) 132. N. Irti, Introduzione allo studio del diritto privato, Padova 1990, (...) 133. C. Prediger, A noção de sistema no direito privado e (...) 134. R. Zimmermann, Codification: history (nt. 3), p. 106. (...)

53 Moreover, the unity brought about by a code prevents the “proliferation of unjustified distinctions” based on historical and political events 135 . It is well to point out that, on the whole, the attempts to uncouple family law from the civil code throughout the twentieth century spawned from totalitarian ideologies (whether right-wing or left-wing) whose goal was to “place the family under permanent and constant state control” 136 .

135. W. Müller-Freienfels, The problem (nt. 14), p. 90. (...) 136. O. Gomes, Novas tendências (nt. 110), pp. 179 and 180. (...)

54 Moreover, one cannot ignore the political interests that permeate any civil code and that family law has a sociopolitical function 137 : “ La decodificazione è uno strumento di politica legislativa . Oggi che la società politica è scossa dalla crisi, e i fondamenti dello Stato controversi e messi in questione, la società civile si offre garante di continuità e stabilità. Il codice assume un plusvalore storico; le leggi speciali, ormai spoglie di raccordi ed impulsi costituzionali, si mostrano povere ed effimere. I fenomeni di decodificazione perdono vivacità creativa e dinamismo interiore 138 (“Decodification is an instrument of legislative policy. Now that the political society is facing a crisis and the foundations of the State have become controversial and precarious, the civil society guarantees continuity and stability. Codes have acquired historical value, while specific legislation, practically bare of any constitutional articulations and impulses, appears to be poor and fleeting. The phenomena of decodification have lost their creative vitality and internal dynamism”).

137. Cf. O. Gomes, Novas tendências (nt. 110), p. 179; W. (...) 138. N. Irti, L’Età (nt. 96), p. 10. (...)

55 Perhaps the issue would be best understood not as a technical debate (whether or not to accept decodification) 139 , but as a political dispute 140 over a code that ensures values regarded as essential by civil society 141 . As such, family law must be capable of ensuring private autonomy and be able to withstand any attempts by public agents to artificially transform institutions that are dynamic by nature 142 . There are no technical grounds for the uncoupling, nor is it possible to claim that preserving family law within the civil code would perpetuate values that are no longer relevant to modern society (which would be the same as claiming that separating family law from the code would promote a more liberal conception of the “family”). In order to refute such claims one must only to point out that in the mid-twentieth century conservative Catholic groups supported the creation of a family code 143 .

139. From a logical standpoint, it may in fact be impossible (...) 140. Interestingly, notwithstanding the political undertones, codes are not usually drafted (...) 141. N. Irti, L’Età (nt. 96), p. 12; F. Siebeneichler de (...) 142. O. Gomes, Novas tendências (nt. 110), p. 180. (...) 143. I specifically refer to the experience of the International Union (...)

56 Equally unfounded is the assertion (widely emphasized in Brazil at the time the “Family Act” bill was submitted) that a Family Code would enable this subsystem to adapt more readily to the rapid transformations our society is undergoing. Again, comparative law provides strong grounds to refute this claim. Most scholars consider that the current Russian Family Code (1995), though uncoupled from the system enshrined in the Russian Civil Code, is on many points below current international standards. This has led the Russian legislature (especially in recent years) to amend its content regarding several topics, which has been a slow (and certainly still incomplete) process 144 .

144. The most widely amended section of this family code was (...)

11 Harmonization of Law and Supranational Codes

57 An in-depth analysis of these issues is of paramount importance to the harmonization of the law of countries that belong to the same economic bloc (such as BRICS or the European Union). Usually, discussions tend to focus on the legal aspects of legal transactions in general, but steps have already been taken to discuss topics related to family law (such as the creation of the Commission on European Family Law – CEFL, in partnership with the University of Utrecht). Despite the fact that some issues are more recurrent (such as child protection, equal treatment for men and women etc.), any attempt to draft legal texts (on family law) must necessarily address whether it is more expedient to approach the subject as part of a larger body of rules or as a separate (micro)system.

58 One of the latest and most significant attempts to harmonize family law is the 2006 Model Family Code. Its scope is not limited to the European Union (it is intended to serve as a global model) and its purpose is to offer “modern solutions” that can be implemented in legal systems with very different historical backgrounds. For this reason, the code is characterized by general clauses, thus leaving the specific details of each topic to national lawmakers 145 .

145. Cf. I. Schwenzer, Preface to the Model family code – (...)

59 Although the scope of harmonization is not to draft a common civil code or family code 146 (but only to regulate certain “sectors” of family law that are more sensitive from an international viewpoint 147 ), the economic bonds that tie certain countries (which do not always imply cultural bonds) certainly increase the influence the legislative choices of one country have on the construction and renovation of the legal system of another. Evidently, supranational codes promote harmonization among the legal systems of a group of countries 148 . Nevertheless, even “simple” national codes facilitate comprehension and bring countries with (usually economic) 149 common interests closer together, because they centralize the principles and fundamental rules of a branch of law 150 , and this is what ultimately plays a harmonizing role in the external arena 151 .

146. Among the various areas of private law, family law (as (...) 147. In general, the close kinship between the major institutions, rules (...) 148. F. Siebeneichler de Andrade, Da Codificação (nt. 129), p. 163 (...) 149. India is a case in point. There is a multitude (...) 150. “L’organizzazione sistematica, l’individuazione di regole e principi comportano un’elasticità che (...) 151. “L’esperienza cinese ci nostra come questo stia funzionando anche in (...)

12 Harmonization of Law and the Case of BRICS

60 In the specific case of BRICS (of which Brazil is a member), the issue takes on a different hue on account of the different codification model (that codifies family law separately) adopted in socialist countries (which traces its roots to the recent history of two BRICS members: China and Russia).

61 Remarkably, the efforts undertaken in recent years by two members of BRICS (China 152 and India 153 ) to renovate and unify their own national private law have prompted a debate regarding codification models 154 . Evidently, they could simply resort to creating their own models of codification. However, the time necessary to accomplish such an undertaking (decades, at least) does not seem reasonable in light of the pattern of socioeconomic development in the current global political context 155 .

152. For a small summary on the development of the Chinese (...) 153. In the case of India, there are various circumstances that (...) 154. On Chinese family law, “la differenza fra il diritto cinese (...) 155. On the time necessary to draft a code in an (...)

62 Specifically regarding China, “the transition from a socialist system to one that is based on freedom and the rule of law has entailed such a significant change of the ethical foundations of society that courts and legal doctrine alone cannot achieve the necessary adjustment of private law. New legislation is required, and it should be in the nature of recodification rather than piecemeal reform” 156 .

156. R. Zimmermann, Codification: history (nt. 3), p. 112 (the statement (...)


63 For the reasons mentioned above, it seems inadequate to regulate family law separately. The question remains, however, and the issue must be tackled in order to avoid neglecting values and human rights whose protection is considered essential by most modern societies, in which the family has visibly acquired international and intercultural features 157 .

157. C. L. Marques – B. Miragem, O novo direito privado (...)

64 In countries (such as China) that are in the process of recodifying their private law based on foreign models, this does not mean, however, that a draft civil code must be approved all at once. The discussion and enactment of each part of the code could very well be carried out in consecutive stages. In this case, clear priority should be given to the most sensitive areas of trade, leaving family and inheritance law (due to their peculiarities) for a later time 158 . The only thing that seems inadequate (because it would disrupt the systematic structure of private law) is for the rules of family law to be separated from the civil code (as was the case in Russia during the nineties 159 ).

158. In favor of this view, but in a different context, (...) 159. On this issue, see also J. P. Schmidt: “It is (...)

Aufsatz vom 02. Mai 2016
© 2016 fhi
ISSN: 1860-5605
02. Mai 2016

  • Zitiervorschlag Bernardo B. Queiroz de Moraes, FAMILY LAW FROM PUFENDORF TO THE TWENTY-FIRST CENTURY: SYSTEMS AND MICROSYSTEMS (02. Mai 2016), in forum historiae iuris, http://www.forhistiur.de/2016-04-moraes/