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Due Process and Civil Procedure, or How to Do Codes with Theories

Due Process and Civil Procedure, or How to Do Codes with Theories Abstract Franco Cipriani’s historical research on the great authors of “scientific proceduralism” (Giuseppe Chiovenda, Francesco Carnelutti, and Piero Calamandrei) made it possible to elaborate a theory of the civil process: “guaranteeism.” The theory holds that the lawsuit is a legal relationship between private parties, and the judicial authority only acts in the trial as an impartial bystander. This is opposite the procedural tradition of the twentieth century that accentuates the legal–public nature of the process and therefore the autonomy and activity of the judge to come to a fair resolution. The wide acceptance of the Italian classic authors on civil procedure in Spain and Latin America explains the impact that Cipriani’s “revisionist” work had in several countries and the tension between guaranteeism and activism in their codified regulation of the trial. From that point of view, this Article analyzes the most recent codes of civil procedure, those of Colombia and Brazil. If historiography has led to theory, it is interesting to find out whether theory leads finally to legislation. What I shall have to say here is neither difficult nor contentious; the only merit I should like to claim for it is that of being true, at least in parts. The phenomenon to be discussed is very widespread and obvious, and it cannot fail to have been already noticed, at least here and there, by others. Yet I have not found attention paid to it specifically. John L. Austin1 A wave of reforms affecting the civil trial is sweeping across Latin America. The new Spanish Civil Procedure Code (Ley de Enjuiciamiento Civil, 2000) was followed by those of Honduras (2007) and El Salvador (2008). Some ten years later came those of Colombia (Código General del Proceso, 2012), Bolivia (2013), Brazil (2015), Nicaragua (2015), Ecuador (2015), and Costa Rica (2016), among others. There are, moreover, a number of law reform projects underway (e.g., Chile, 2012). The primary focus of the debate underlying such reforms is the role of the judge in the trial. For a large number of jurists, civil lawsuits primarily concern private subjects, where the judge, as an impartial third party, presides over procedural acts in order to guarantee the rights of the plaintiff and the defendant. For others, the judge must seek substantive equality between parties who are usually socially and economically unequal. The state guarantees this by granting the judge broad powers of intervention. The conceptual duality between the “guaranteeism” (of the parties) and the “activism” (of the judge) expresses such opposition. As such, any legislative novelty is analyzed in accordance with those parameters.2 It is not my intention here to review the intense rewriting of the civil trial in Latin America.3 I am interested, instead, in recalling the theoretical basis underlying the discussions.4 More particularly, I intend to demonstrate that the so-called guaranteeist theory, which lies at the center of the debate, is based on a historical reconstruction of the modern doctrines of procedural law (dating from the twentieth century) that were developed—hereby lies the originality—by experts in current law. History has led to theory, and theory has led to legislation. That historical reconstruction was carried out in Italy by Franco Cipriani (1939–2010). Professor of Civil Procedure Law at the University of Bari and a renowned scholar of family and marital procedure, Cipriani produced, at the end of the past century, two extensive volumes that challenged the prevailing vision of the Italian civil trial.5 It should be noted that the Code of Civil Procedure (Codice di procedura civile, 1940–1942), which was promulgated under the Mussolini regime, is still in force in Italy, and therefore, at least in principle, is subject to criticism because of the political circumstances that surrounded its enactment. Knowing and understanding how the modern canon of procedural science was forged (by a triad consisting of Giuseppe Chiovenda, Francesco Carnelutti, and Piero Calamandrei), and what theoretical model underpins the Code of Civil Procedure of 1940, was the main objective of Cipriani’s work. His Storie di processualisti e di oligarchi: La procedura civile nel Regno d’Italia (1866–1936), published in 1991, pursued that double purpose. The publication dealt with the professional career of the great masters, with a special focus on the forgotten legal scholars (in particular, the professor, judge, politician, and reformer Ludovico Mortara, but also Luigi Mattirolo before him and Carlo Lessona afterward) and on their texts, including the personal anecdotes that gave a basis and meaning to the doctrines. Bearing in mind that the history of the 1940 Code overlaps with the definition of theoretical archetypes and the collaboration of the experts on the civil trial with the fascist legislators (the ministers Arrigo Solmi, Alfredo Rocco, Pietro De Francisci, and Dino Grandi), the academic intrigues that Cipriani discloses explain genuine legislative policy challenges. For this very reason, the second great contribution of Cipriani was entitled Il Codice di procedura civile tra gerarchi e processualisti (1992), which he openly described as a naturale prosecuzione (“natural continuation”) of his Storie di processualisti e di oligarchi. As far as the development of civil procedure is concerned, Italy’s role is of utmost relevance. It was the first southern country to adopt the theory of scientific proceduralism that was developed in Germany (by Oskar von Bülow, 1837–1907, and Adolf Wach, 1843–1926). This theory offered a systematic vision of the trial, understood as an autonomous legal relationship—between the plaintiff, the defendant, and the judge—articulated around the concept of “action,” that is, the right to request the judicial intervention of the state when a legal dispute arises. In general terms, it was under the influence of Vittorio Scialoja (1856–1933)—Antonio Scialoja’s son, a great figure of the Risorgimento, Dean of the University of Rome’s Faculty of Law, and several times minister—that Italian jurists underwent intense Germanization between the end of the nineteenth century and the beginning of the twentieth century. It fell upon Vittorio’s young disciple, Giuseppe Chiovenda (1872–1937), to continue this trend concerning procedural law, which was driven by admiration for the oral trial introduced by the Austrian Minister of Justice Franz Klein’s Zivilprozessordnung (1895)—a genuine model code for his Italian colleagues.6 Italy was also the cradle of the first scientific journal dedicated entirely to an analysis of the civil trial. The Rivista di Diritto Processuale Civile (referred to simply as the Processuale), was founded in 1924 by Francesco Carnelutti (1879–1965), with the support of Chiovenda, and which had Piero Calamandrei (1889–1956) as head of its editorial board. Whether the Processuale—with a sustained focus on comparative law7—offered an intellectual forum to the (authoritarian) fascist conception of justice (as one may suspect, given the time of its founding) is a debated issue that the works published in it do not allow one to perceive clearly.8 The influence of Chiovenda among his compatriots was reinforced, in the third place, through the early influence he exercised over Spanish law professors. For example, José Casais Santaló (1894–1971) translated Chiovenda’s influential Principii di diritto processuale civile into Spanish 1922–1925. Casais Santaló was in fact his first Hispanic disciple9 specializing in the emerging “scientific procedural law” during a research stay at the University of Rome. In general, the growing outflow of young Spanish university students abroad to widen their studies in procedural law would have immediate repercussions. By the second decade of the twentieth century, a profound renewal of procedural studies was already underway in Spain, and would continue to pick up speed in the following years. Such renewal essentially consisted in the introduction, dissemination, and reception in our country [Spain] of procedural dogmatism, that is, what has also been denominated, perhaps not quite appropriately, scientific proceduralism, which had been experiencing an extraordinary boom in Germany since the second half of the nineteenth century, and in Italy since the beginning of the twentieth century.10 Next came the Spanish edition of La condanna nelle spese giudiziali,11 translated in 1928 by Juan A. de la Puente, with a preface by Josep Xirau (1893–1982), a professor of procedural law in Barcelona. Xirau’s preface introduced his admired Italian colleague and his theories to the Spanish-speaking public.12 In reproducing almost verbatim the opinions of Piero Calamandrei, Xirau also reflected an interest in displaying the intellectual originality of Chiovenda, against the accusation that the latter had merely imported German dogmatism.13 The participation of Spanish specialists in the studies dedicated to Giuseppe Chiovenda (in addition to Xirau, contributors included Francisco Beceña, 1889–1936) ultimately reflected the mutual intellectual respect and an assiduous exchange between the academics of both countries.14 The brief observations above suffice to prove the existence of a network of influences and ideas around the civil trial that extended from central Europe to the Mediterranean, and which reached Spain to offer a limited but incisive collection of texts on “scientific procedural law” for use by experts from Latin America.15 The traditional relationship between Spain and its former colonies—a key element in understanding codification in the new states16—led to the dissemination in Latin America of German–Italian doctrines on the civil trial, which had been already well established in Spain since the 1920s. European totalitarianism and war, which brought German (James Goldschmidt, Uruguay), Italian (Tullio E. Liebman, Brazil), and Spanish (Niceto Alcalá-Zamora, Mexico; Santiago Sentís Melendo, Argentina) specialists in procedural law to Latin America fostered the propagation of so-called scientific proceduralism in the host countries, where local schools were formed and new translations published.17 It is worth recalling, in this regard, that the introduction to the Brazilian Código de processo civil (1973), which was drafted by Alfredo Buzaid (1914–1991), a Brazilian disciple of Tullio Liebman and later the Minister of Justice of the federal government (1969–1974), opens with a quote from Chiovenda.18 “All the procedural doctrine published on the continent since the 1950s,” wrote Adolfo Alvarado Velloso, a well-known Argentinean author, “has contributed greatly to [the reception of the European classics on the civil trial] because those who, until this moment, teach the subject in the different [universities] of America, were trained through their reading and study.” In this regard, he highlighted “the doctrinal influence of . . . the EJEA [Ediciones Jurídicas Europa América] publishing house, which, for many years, was devoted to translating the most outstanding works of Italian and German proceduralism . . . . And all of us Latin Americans absorbed them and convinced ourselves of their virtues, without realizing—until very recently, thanks to Franco Cipriani—that all the translated authors were commenting on either the Nazi law of 1937 or the fascist law of 1940.”19 The broad communication channel between Italy, Spain, and Latin America explains why Cipriani’s work enjoyed the same fortune as the contributions of the old masters. Indeed, a number of their imported works were of relevance both to Spain and to the Latin American countries that were placed under the influence of Italian doctrine. These doctrinal influences included the following: (1) reviewing the doctrines of the civil trial; (2) denouncing the Codice di procedura civile as, in the words of Calamandrei, “the most fascist among the fascist codes,”20 and (3) citing the Italian civil trial, whose principles (orality, immediacy, concentration) were based on Klein’s authoritarian Prozessordnung (i.e., opposed to the protagonist role of the parties in favor of the powers of the judge).21 Indeed, the debate unleashed by Cipriani’s Storie in Italy not only transcended the legal journals there and made it into the daily press,22 but it was further reflected in Spanish bibliography on procedural law. It fell upon Juan Montero Aroca (University of Valencia) to review that publication (“a sort of personal and intellectual judgment”, a sort of indictment of the patres, he wrote23)—a book with the capacity of stirring contemporary literature on procedure.24 Manuel Cachón Cadenas (Barcelona), another expert in the field, offered, however, the most interesting reading. He crossed Cipriani’s data and observations with the avatars of the Spanish doctrine influenced by Chiovenda to conclude that the Storie suggested “a new and original interpretation of the evolution of contemporary procedural thought in Italy,” which conforms to “a counter-history against the version that had ultimately imposed itself, becoming quasi-official in Italian proceduralism, and, as a consequence of its diffusion, in Spanish and Latin American.”25 In fact, Cachón’s work is much more than a review, for it documents the Spanish presence, early on, of the “official version” that was developed in Italy—even before it was circulated there—of the theories and technical resources underlying the Codice di procedura. At any rate, the works of Montero and Cachón followed divergent paths. Cipriani’s work was a critical historiography that reviewed the doctrinal trajectory and questioned translational affirmations by leaning on a collection of unpublished sources. It had two effects. The first was inspiring Manuel Cachón Cadenas, today considered Spain’s main expert on the history of the civil trial and on the Spanish proceduralists during the late eighteenth to mid-twentieth centuries.26 The second effect of Cipriani’s contribution was influencing Juan Montero. It consisted in the presentation of a procedural archetype that can be described as “liberal,” “guaranteeist,” or “privatistic,” and that is thus presented for the consideration of any legislator, both in Spain and in Latin America. The replacement in Spain of the centennial Ley de Enjuiciamiento Civil (1881) enabled the formulation of the archetype of the guaranteeist trial. Upon the entry into force of the new procedural code (2000),27 Montero offered an immediate assessment of this important reform: “It’s about reconsidering what the civil trial has been and what it can be.”28 Indeed, his publication—the first to combine in its title the terms “policy” and “civil trial”—provides a reflection on the procedural order that emerged in Spain in the twenty-first century. It presents the Spanish civil procedure as an oral trial in which the parties defend their rights with a remarkable measure of autonomy, but where the judge retains broad control powers,29 which are at times reinforced.30 Montero’s publication was widely echoed. It was soon translated into Italian—an extraordinary occurrence—with a preface by Cipriani himself that stirred up controversy and associated the names of Cipriani and Montero as the main champions of the guaranteeist cause.31 The translation further served as an excuse to publish a second book under Montero’s supervision (Proceso civil e ideología, 2006), with diverse materials and significant participation by Latin American experts.32 The complexity of the book can be inferred from its subtitle (Un prefacio, una sentencia, dos cartas y quince ensayos): “A Preface,” that is, Cipriani’s contribution to the Italian version of Principios políticos (entitled “The Italian Civil Trial Between Revisionists and Deniers”); “Two Letters” (inspired by a controversial Argentinean judicial resolution); and “Fifteen Essays” by several Italian and Spanish as well as Latin American authors (from Argentina, Brazil, and Peru), including a valuable contribution by a Portuguese author—though not all of these essays represented the guaranteeist trend. The second edition of Proceso civil e ideología33—a reflection of its wide influence—included new texts by Montero and annexes containing motions on the “guaranteeist procedural law” that were approved at the Azul congresses (Argentina).34 As a result of this relentless effort, Montero’s collection has become the reference work in discussions on procedural models. Several reasons, both historic and present, justify the liveliness of the Latin American debates.35 First, the influence of the Italian doctrine, with its publicist formulas favorable to the powers of judges, became apparent in the 1930s, when, for example, the first republican procedural code was promulgated in Brazil (1939). On that occasion, Luiz Machado Guimarães, a well-known commentator on the code, stated that “the function of the trial is no longer to restore individual rights that have been violated, but rather to restore and secure, through the definition of litigation, the rule of law.”36 In 1923, Klein’s publicist model had made its way, with remarkable precocity, into Colombia through the so-called Arbeláez Code (i.e., “cautious judgments” [juicios de prudencia], “informed judgments” [juicios con conocimiento de causa], and the “prevalence of substantive law” [prevalencia del derecho sustancial]).37 Italian dogmatic theories were also received and reinforced by the presence of exiles, Ibero-American congresses, the founding of specialized journals,38 and the works of local proceduralists, such as the Argentinean Hugo Alsina (1891–1958)39 and the influential Uruguayan professor Eduardo Couture (1904–1956).40 This wave of genuine scientific proceduralism, which helped train the next generation of scholars (e.g., Alfredo Buzaíd, Brazil; José Ramiro Podetti, Argentina; Hernando Devis Echandía and Álvaro Leal, Colombia),41 was accompanied by a new generation of codes (e.g., Guatemala, 1963; Argentina, 1967; Colombia, 1970; Brazil, 1973). However, it did not take long for those codes to prove insufficient in improving the efficiency of civil justice in light of, as Couture put it, the “problems that the social, economic, cultural, and ethical reality presents to the legislator.”42 Finally, the fall of dictatorships and the post-conflict legal framework (expressed in the democratic constitutions of Brazil, 1988; Colombia, 1991; and Argentina, 1994), raised the question of the constitutional basis of the civil trial, which was now the object of new treatment. Thus, the following elements acquired constitutional value: justice as a supreme value,43 the judicial protection of rights,44 the guarantee of res judicata,45 the right to recourse,46 the audi alterem partem principle and the right to counsel,47 the nullity of unlawfully obtained evidence,48 the publicity of the trial with respect to the right to privacy,49 free access to courts,50 and free legal aid for litigants without economic means.51 Those new constitutions were developed on the basis of the American Convention on Human Rights, which has been ratified by more than twenty states in the region.52 “The civil trial is an instrument that the state offers the litigants in order to administer justice,” protested the Brazilian lawmaker in 1973: It is not intended to simply define rights in the private struggle between the contenders . . . . The interest of the parties is not only a means which serves to achieve the purpose of the trial, insofar as it gives rise to that impulse intended to satisfy the public interest of legal action in the configuration of conflicts.53 It was this publicist vision of the trial, conceived as an instrument in the service of the law, rather than as a means of repairing the violated rights of citizens, that conformed to the ideology that thrived in Latin American codes and the discussion in favor of the guaranteeist cause. The so-called Model Code of Civil Procedure (1988),54 a theoretical-practical product of the Instituto Iberoamericano de Derecho Procesal and the work of the Uruguayans Enrique Vescovi, Luis A. Torello, and Adolfo Gelsi Vidart, offered a good basis for debate.55 The text of the Model Code, of high interest to the legislative movements of the region (e.g., Chile, Uruguay), leans toward a publicist orientation, still dominant in Latin America. On the one hand, the Model Code still allows a civil trial to be initiated ex officio, although the possibility is subject to legal authorization.56 On the other hand, it enshrines the role of a powerful judge, capable of rejecting the demand and controlling the evidence phase of the trial.57 Both solutions have been present in the latest reforms, driven by a “common sense” that links, in a cause–effect relationship, “slow trials,” “injustice,” and the “weakened judge.” One could claim that the Model Code has attempted to balance the position of the parties with that of the judge who has the obligation of redressing the material inequalities that separate them and who seeks the material truth and (distributive) justice at any price (that is, at the price of the liberties of the litigant according to guaranteeist proceduralists). The sharp contrast between procedural ideologies has recently led to a second Model Code, which was developed, within the framework of the Instituto Panamericano de Derecho Procesal, on the basis of guaranteeist postulates.58 Hence, against the hypothesis of an ex officio initiation of the civil trial—an element that is undoubtedly “inquisitive” according to the guaranteeist view—the said code links the exercise of judicial activity to the initiative of the party, thus excluding jurisdiction in the absence of a lawsuit.59 In other words, the second Model Code proclaims absolute respect for the principle under which the parties delimit the scope of proceedings.60 In addition, the impartiality of the judge, who is placed above the parties, is enshrined with emphasis: “without completing their insufficient affirmations, evidence, or objections, or informally redressing their errors, except those that affect the procedural relationship in such a way that they impede the pronouncement of a judicial resolution of useful merit on the merits of the dispute.”61 Furthermore, when the evidence is not sufficient to resolve the dispute, the judge must rule in favor of the defendant (in dubio pro reo) without soliciting further evidence of the judge’s initiative.62 Have those models or, more generally, those ideologies, had an influence on the procedural codes of Colombia and Brazil, the most recent in Latin America? Before addressing this question, I would like to point out the historiographical dependence of the two opposing theories. When considering the guaranteeist perspective—as opposed to the publicist theory—I observe two notable prejudices at stake.63 The first is expressed in positive terms and consists of the guaranteeist description of the liberal-state civil trial as a space conceived by the legislator at the exclusive service of the private citizen. From a procedural point of view (i.e., trial phases and proceedings), such a trial reflects the survival of the solemnis ordo iudiciarius that was present in the old European ius commune and, therefore, of a slow and written conduit—a kind of ritual duel that was undertaken before an impassible judge. Swift and expeditious judgments were rendered only in matters of commerce; these were dealt with by merchant courts, derived from a tradition of autonomy.64 Although the slowness and the multiplicity of procedures have been the subject of guaranteeist criticism, the passive role of the judge or, to put it another way, the leading role of the parties (the well-known principle according to which the parties delimit the scope of proceedings) draws praise for the nineteenth century codes. The iconic representation of justice as a blindfolded female figure—a representation apparently dating back to the nineteenth century65—clearly expresses judicial passivity, which is the basis of its (constitutive) impartiality. Now, that idealized vision of the old procedural codes rests on a simplification that is plagued with severe omissions. Without going into the dependence of justice (conceived of as “administration” rather than “power”) on the executive,66 I will limit myself to highlighting a neglected question, which is by no means minor. The procedural laws of 1855 and 1881—and perhaps not only those two Spanish legal texts—granted the judge the power to request new evidence when the assessment of the evidence brought forward by the litigants did not allow him to assess the facts in court.67 This was clearly not a guaranteeist formula. Second, from a negative perspective, guaranteeism describes as “authoritarian” and “publicist” the civil trial that made its way into Europe with the Austrian Ordinance of Klein, theorized by the German–Italian authors of the “scientific” doctrine.68 In telling the “story” of the civil trial—from the enlightened despotism of the Josephine procedural ordinance69 to the legal socialism of Anton Menger and of Klein himself, to fascism, to Nazism, and on to Soviet law—the guaranteeist critique links this conception with the terrible dictatorships of the 1920s and 1930s. The conclusion is clear. As Juan Montero writes: It has not been highlighted enough that the codes in which judges have been granted greater powers were promulgated precisely in countries and at times when those judges were less independent, which resulted in that, in the end, by granting them those powers, the interference of the Executive Power in the effectiveness of the subjective rights of citizens was being strengthened.70 If it happens that a guaranteeist legal text, such as the liberal Spanish Ley de Enjuiciamiento Civil (2000), still grants the judge the ability to request evidence, or introduces the principle of good faith, then this responds to the amendments presented by the Left during the parliamentary debates that preceded its adoption.71 In this case, the effort made by the publicists to point out the historical prejudices on which the guaranteeist theory is based has been quite straightforward: it does not seem legitimate to equate authoritarianism with totalitarianism, even when referring to the legal position of the civil judge in the twentieth and twenty-first centuries as “authoritarian.”72 My analysis so far allows us to next approach the abovementioned codes: the Colombian Código General del Proceso (C.G.P.) and the Código de Processo Civil (C.P.C.) of the Federative Republic of Brazil, both in force since 2016.73 In Colombia, there is a small but strong and active group of guaranteeist scholars at the University of Medellin. There is even a young journal (Garantismo Procesal, active since 2011) that is closely linked to the teachings of the Argentinean Alfredo Alvarado Velloso.74 Nonetheless, it must be said that the new procedural code has remained within the coordinates of “publicism.” On the one hand, the authority of the abovementioned Hernando Devis Echandía, who was favorable to the reinforcement of the powers of the judge for the sake of a social and effective trial, was present in the debates concerning the overhaul of the 1970 Code of Civil Procedure, at a time when there existed broad consensus on the limits of Colombian justice: “One of the factors of the atrocious violence that plagues Colombia is the poor result offered by a jurisdictional apparatus that does not decide with the required promptness, cannot properly investigate the illegal acts committed, and does not uncover or sanction the criminals.”75 On the other hand, a “scientific procedural renewal”76 has been underway since 1991, owing to the Political Constitution (C.P.).77 This renewal ushered in the constitutional “actions of guarantee” (acciones de tutela, Article 86 C.P.) against the judgments of the courts—an important instrument for turning Colombian judges into “zealous guardians of the substantive equality of the parties involved in the trial.”78 Finally, if one considers the theory of procedural duties contained in Article 95.7 C.P. (good faith, the propriety of the parties, the rejection of unwarranted actions, all placed under the power that corresponds to the judge),79 one understands the publicist vocation of the doctrine, now conceived as a “constitutionalist” current (pertaining to the constitutionalism of the social and democratic state based on the rule of law), which was made apparent in the 1989 reform and was upheld in the new codification of 2012–2016. The model described was prevalent among experts when the Instituto Colombiano de Derecho Procesal intervened in the drafting of the new code.80 A quick look at its provisions shows that, despite the existence of guaranteeist voices, the Colombian lawmaker upheld and perfected the publicist model of German–Italian origin, reinforced in this case by the desperate search for remedies to the harsh conditions of life in societies that do not know the welfare state. Indeed, article 4 of the C.G.P. establishes that “the judge must make use of the powers that this Code grants him to achieve real equality between the parties”; this is further emphasized in article 42.2, which deals with the “judge’s duties.” The wording of article 42.2 is clearly more emphatic than that contained in the equivalent precept of the aforementioned Model Code (compare article 4: “The court must uphold the equality of the parties in the trial.”). Further, article 42.4 fully admits ex officio evidence.81 Still with regard to matters of evidence, the possibility that article 167 C.G.P. grants the judge the power to distribute the onus probandi between the parties (that is, the theory of the dynamic burden of proof) was challenged early on before the Constitutional Court. However, in ruling that the questioned precept was constitutional, the Court reinforced the judge’s position.82 For this reason, Alvarado Velloso, a supporter of the guaranteeist trend, has written—fearing perhaps the legislation in force at present—that “Colombia will now have the most authoritarian civil procedure code in Latin America, coexisting with the criminal procedure code, which is one of the most libertarian codes on the continent. What a strange destiny this country has!”83 Although the controversy raised by guaranteeism has been primarily expressed in Spanish—several works of Cipriani were translated into Spanish thanks to the enthusiasm of Eugenia Ariano (Peru)—the participation of guaranteeist jurists in international forums, and the existence of Portuguese followers of the proceduralists, has further favored the circulation of the theories of that school in Brazil.84 My observation is completed with a reference to the work of Professor Leonardo Greco (Rio de Janeiro), a local expert familiar with European literature who, shortly before a procedural reform was discussed in Brazil, exposed the guaranteeist theory there. Thus, Cipriani’s name and work became a doctrinal reference and the intellectual base of a “privatistic” school.85 Let us recall in this regard that, originally, the procedural codes of 1939 and 1973 were both deeply influenced by Italian law and theories.86 In fact, the reform of the civil procedure system received no particular impetus, nor was it unanimously requested by the Brazilian doctrine. A discredited parliament that aspired to present legislative results in order to justify its existence undertook the codification of the trial against the backdrop of the always-attractive discourse of improving and expediting justice. Suffice it to recall that, in those days of profound political controversy—including the unusual impeachment of President Dilma Rousseff—among the country’s more than five hundred congressmen, almost three hundred have been or are still being investigated in criminal cases, whereas in the Senate almost fifty of the eighty-one senators are in the same situation. In such a flawed climate, the procedural code seemed like a good excuse. At any rate, it was approved with rare unanimity. The Brazilian code has two souls. The commission of experts who drafted the preliminary bill on behalf of the Senate,87 was guided, in line with the tradition of the codes of 1939 and 1973, by a publicist text that reflected the teachings of Joseph Carlos Barbosa Moreira.88 When the draft code was presented before the House of Representatives, where other experts were present (in particular, Fredie Souza Didier Jr., adviser to the rapporteur of the draft bill, Deputy Barradas) it took a somewhat guaranteeist turn. The same Fredie Didier admitted that the corruption scandal known as mensalão, the timing of which coincided exactly with the processing of the procedural code (the mensalão trial began on August 2, 2012), generated “a perception among the parliamentarians that it was necessary to reduce the powers of judges. They clearly took a different stance regarding the power of the judge.”89 Contrary to the hasty accusations leveled at the draft code—namely, that it proposed a mere cosmetic reform—the new C.P.C. that emerged following the parliamentary debates actually strikes a balance between the procedural models that have been discussed. “What characterizes the new procedural legislation with regard to the relation between the state and the individual is the collaboration and the dialogue between the procedural subjects.”90 In fact, the active role of the judge seems to offset the legal requirement of the opinion of the parties. This is perhaps best expressed in article 357 of the new code. Although it grants the judge, on the one hand, extensive powers in the handling of the case, it demands, on the other hand, the agreement of the litigants and the consideration of their suggestions on the organization of the procedure. The civic mandate of article 8 is also worth noting: “When applying the legal system, the judge will attend to social purposes and the requirements of the common good, safeguarding and promoting the dignity of the human person and observing proportionality, reasonableness, legality, publicity, and efficiency.”91 Indeed, the principles mentioned in article 8, which are subject to interpretation, must be read alongside article 489(2), that is, on the basis of the following judicial duty: “in case of a conflict between norms . . . to justify the object and the general criteria underlying the deliberation made, by stating the reasons that authorize the interference in the distant norm and the factual premises upon which the conclusion is based.”92 While the judge retains considerable powers with regard to evidence,93 the Code also admits contrats de procédure,94 thereby ending the doctrinal controversy over the acts of the parties delimiting the scope of the case with a pronouncement in favor of conventionality in trials.95 When the state incurs unconstitutional omissions, which are always both illegitimate and deeply damaging to the fundamental rights and freedoms of individuals, institutions, and the community itself, the intervention of the judiciary, notably that of this Supreme Court, is justified in order to overcome incomprehensible situations of inertia exposed by the instances of power in which the Brazilian state apparatus is pluralized.96 It may well be. However, it is still possible to think that an “institutional activism” favorable to the citizen corresponds, above all, to the executive and legislative branches of the state, judicial power being technically impartial, especially regarding civil cases.97 It even seems possible to distinguish—a relevant problem that is nevertheless ignored in discussions on procedural ideologies—the simple declaration of a right, which is a procedural moment in which the guaranteeist theory and the formal equality between the litigants must prevail, and the execution of the judicial resolution that recognizes the declared right when, to employ a recent title, the civil trial acts as a “compensatory technique of social inequalities.”98 During the “social moment” of the executive judgment, the “active” powers of the judge would come into play. Depending on the circumstances of the case, the judge can take the material and personal conditions of the losing party into account and invoke, if necessary, the help of other instances (social assistance services, health administration, and public housing companies) before executing in ordinary life the right that has been declared in the abstraction of a legal debate.99 A synthesis of (apparently) opposed models could thus be reached. This titillating matter undoubtedly deserves careful exploration. Footnotes 1 John L. Austin, How to Do Things with Words 1 (Clarendon Press 1962) (1955). 2 See, e.g., José W. Bezerra da Costa Neto, O novo Código de processo civil e o fortalecimento dos poderes judiciais, 249 Revista do Processo [RdP] 81 (2015). 3 SeeDiego E. López Medina, Nuevas tendencias en la dirección judicial del proceso (Super. Council of the Judiciary ed., 2011); C.H. van Rhee, Evolución del Derecho Procesal civil en Europa: Cómo el juez activo se convirtió en lo normal, 2 Revista Chilena de Derecho y Ciencia Política 11 (2011). 4 I initiated the exploration of that basis a few years ago: see Carlos Petit, Historia y teoría del proceso civil garantista, inStoria e diritto: Esperienze a confronto 325 (Bernardo Sordi ed., 2014). 5 See, e.g., Franco Cipriani, I provvedimenti presidenziale nell’interesse dei coniugi e della prole (1970); Franco Cipriani, Della separazione al divorzio (1970); Franco Cipriani, Matrimonio e processo (1990). 6 On the characteristics of Klein’s system according to Chiovenda, see Franco Cipriani, Giuseppe Chiovenda en Parma (de la “Procedura Civile” al “Diritto Processuale”) Mayo 1900–Diciembre 1902, in 43 Thémis: Revista de Derecho 117, 123 (2001) (translated by author): [T]he only natural limits of the judge’s power are the substantive demands of the parties; the Offizialmaxime [i.e., the principle of ex officio procedure] ought to replace the Parteidispositionsmaxime [protagonism of the parties in the trial], so that “the parties can discard substantive law, renounce their demands, or modify them, but cannot discard the reasons, the exceptions, or the means of proof,” and that “there is no right to request or allow remands; the judge grants them as he sees fit. There should be no unnecessary delays, because it is in the interest of the state to get rid of the claim directed against it as quickly as possible, and because the clogging of the causes that are remitted unnecessarily distracts it from its activity.” Between “guaranteeism” and “publicism,” the publication by Cipriani that had the greatest impact on Latin American literature is, I believe, his analysis of the old Austrian procedural code: Franco Cipriani, En el centenario del Reglamento de Klein (El proceso civil entre libertad y autoridad) (1995), inBatallas por la justicia civil 59 (Eugenia Ariano trans., 2003). 7 The adjective “civile” was dropped from the journal’s name in 1946. In recent years, the Processuale has added the sections “History and Culture of the Trial” and “Foreign and Comparative Procedural Law,” hoping to draw foreign contributions. It was either Franco Cipriani, or those critical of him, who encouraged the creation of the first section. 8 See Vittorio Denti & Michele Taruffo, La Rivista di Diritto Processuale Civile, 16 Quaderni fiorentini per la storia del pensiero giuridico moderno 631 (1987). 9 However, Chiovenda’s authority had been acknowledged a little earlier by Tomás Montejo (1856–1933), lawyer and professor of procedural law at the University of Madrid. In Latin America, the pioneer was a distinguished Argentinean colleague: see Abelardo Levaggi, Tomás Joffré, introductor de Giuseppe Chiovenda en el derecho argentine, 3 Revista Electrónica del Instituto de Investigaciones Ambrosio L. Gioja 98 (2004). 10 Manuel Cachón Cadenas, Historias de procesalistas, universidades y una guerra civil (1900–1950), at 45 (2012) (translated by author). On Casais Santaló and his translation of Principii, see id. at 271–88. 11 Guiseppe Chiovenda, La condanna nelle spese giudiziali (Juan A. de la Puente trans., 1928) (1901). 12 Josep Xirau, Preface to La condanna nelle spese giudiziali,supra note 11, at 5. 13 Cachón Cadenas, supra note 10, at 108ff. On Josep Xirau, see Manuel Cachón Cadenas,Josep Xirau, inDiccionario de catedráticos españoles de Derecho (Nov. 5, 2011), http://portal.uc3m.es/portal/page/portal/instituto_figuerola/programas/phu/diccionariodecatedraticos/lcatedraticos/xpalau. 14 SeeStudi di Diritto Processuale in onore di Giuseppe Chiovenda nel venticinquesimo anno del suo insegnamento (Antonio Castellari et al. eds., 1927). On the Spanish contributions, see Cachón Cadenas, supra note 10, at 69–72. In addition, see Manuel Cachón Cadenas, Francisco Beceña: Un procesalista de primera hora 159–65 (2017). 15 But see Cachón Cadenas, supra note 10, at 641, on the 1918 reading of Chiovenda by the Argentinean procedural law specialist Tomás Jofré (1868–1930). 16 On the 1855 Ley de Enjuiciamiento Civil, see Mónica Vásquez Alfaro, La ciencia útil: Una reconstrucción de las conciencias jurídicas procesales en Colombia y América Latina 27ff. (2015). The establishment of the Instituto Iberoamericano de Derecho Procesal (Montevideo, 1957), which was promoted by the Spanish exile Niceto Alcalá-Zamora (1906–1985), marked the hundredth anniversary of that decisive legislation. 17 There were new translations of Chiovenda in Spain (Guiseppe Chiovenda, Instituciones de derecho procesal civil (Gómez Orbaneja trans., 1936)) and Argentina (Guiseppe Chiovenda, Estudios de derecho procesal civil (Sentís Melendo trans., 1949)). Adolf Wach was translated in Argentina (Adolf Wach, Conferencias sobre la ordenanza procesal civil alemana (Ernesto Krotoschin trans., 1958)), while James Goldschmidt was published in Spain (James Goldschmidt, Derecho procesal civil (Prieto Castro trans., 1936)) and Argentina (James Goldschmidt, Derecho justicial material (Catalina Grossmann trans., 1959)). Santiago Sentís Melendo (1900–1979), another Spaniard who had fled Franco’s dictatorship, translated almost all of Calamandrei’s work during his long exile in Buenos Aires. In addition, Francesco Carnelutti, Metodología del Derecho (Angel Ossorio trans., 1940), was translated in Mexico. 18 The quote stated: “It is important to decide on fundamental reform, or else give up hope for serious progress.” It was extracted from Guiseppe Chiovenda, La riforma del procedimento civile 4 (1911) (translated by author). 19 Adolfo Alvarado Velloso, La garantía constitucional del proceso y el activismo judicial. ¿Qué es el garantismo procesal? 51 (2011) (translated by author). 20 Preliminary Introduction to the Code by Piero Calamandrei, quoted in Franco Cipriani, La ribellione degli avvocati al c.p.c. del 1942 e il silenzio del Consiglio nazionale forense, reprinted inFranco Cipriani, Ideologie e modelli del processo civile. Saggi 75 (1997) (translated by author). 21 The revision (in more than chronological terms) of the official history of the Codice di procedura—the fascist Code of Civil Procedure produced by bland experts who were more than technical advisers (Calamandrei, Carnelutti, Redenti, and Conforti), all of whom were followers of Chiovenda—is examined in Giovanni Tarello, L’opera di Giuseppe Chiovenda nel crepuscolo dello Stato liberale (1973), inDottrine del processo civile: Studi storici sulla formazione del diritto processuale civile 109 (1989). “Fascism was there,” notes Tarello. “The continuity in the personal, conceptual, and institutional uses of the schemes by the staff, [can be] interpreted as a sign that fascism began before the European war and lasted after liberation; a considerable phenomenon (though not commendable) of Italian institutional, social, and cultural history.” Id. at 113 (translated by author). Tarello thus debunks the comforting conception of the Codice di procedura understood by scholars such as Michele Taruffo as “the result of a compromise between the few ideas of the fascist reformers and the orientation substantially contrary to radical innovations prevailing in most of the forensic doctrine and profession, where the latter often ends up prevailing over the former.” SeeMichele Taruffo, La giustizia civile in Italia dal’700 a oggi, at 255 (1980) (translated by author). 22 Perhaps the most severe criticism of Cipriani’s theses was formulated by Luigi Montesano, Storie recenti su Mortara e Chivenda e sul romanesimo di Vittorio Scialoja concretato dai fascisti, 114 Il Foro Italiano 598 (1991); Luigi Montesano, Culto della personalità, “prodotti organici” e “papagalli lusingatori” di Chiovenda in un libro recente, 47 Rivista di Diritto Processuale 284 (1992). On the controversy in the newspapers, see Antonio Carioti, Calamandrei e quel Codice del Ventennio, Il Corriere della Sera (Milan), Jan. 26, 2006, at 41, with a reply by Michele Taruffo, Quel Codice non era fascista, Il Corriere della Sera (Milan), Apr. 9, 2006, at 31, and a rejoinder by Franco Cipriani, Calamandrei e il Codice di procedura civile—Interventi e repibliche, Il Corriere della Sera (Milan), Apr. 13, 2006, at 35. Sometime later, Cipriani gave another interview on the matter to Alessandra Benvenuto in the Corriere del Mezzogiorno (Naples) in July 8, 2007. 23 Juan Montero, Book Review, 1 Justicia Revista de Derecho Procesal 497 (1991) (translated by author). 24 Montero Aroca also reviewed Cipriani’s Il Codice di procedura civile: see Montero Aroca, Book Review, 4 Justicia Revista de Derecho Procesal 1012 (1992). 25 Manuel Cachón Cadenas, Una reseña tardía con algunos episodios tempranos (1999), inHistorias de procesalistas, universidades y una guerra civil (1900–1950), supra note 10, at 89, 90 (translated by author). 26 In addition to the work cited supra note 10, see Manuel Cachón Cadenas, Memoria de procesalistas (2017). See also César Hornero, Historias de procesalistas, 15 Cuadernos del Instituto Antonio de Nebrija 196, 201 (2012) (“Much remains to be done. For this, as a model, as a reference, we have the good work of Manuel Cachón: the Spanish Cipriani.” (translated by author)). 27 Ley de Enjuiciamiento Civil [L.E. Civ.] [Code of Civil Procedure] (2011) (Spain). 28 Juan Montero Aroca, Los principios políticos de la nueva Ley de Enjuiciamiento Civil (Los poderes del juez y la oralidad) 13 (2001) (translated by author). 29 The law, writes Montero, “has leaned toward orality as a determining principle . . . and has included in that principle the so-called consequential principles: concentration, immediacy, and publicity, and has done so reasonably”: Id. at 149. However, the 2000 Ley de Enjuiciamiento Civil was not devoid of “authoritarian” touches (“publicist”) introduced throughout the parliamentary process, such as the abovementioned principle of good faith (Id. at 106), or the powers of the judge regarding evidence (Id. at 121). See also Manuel Cachón Cadenas, La justicia civil española: luces y sombras en materia de eficiencia y garantías procesales (2011) (unpublished manuscript) (on file with author). 30 For example, as guarantor of the principle of good faith (see L.E. Civ. art. 247.3) with sanctioning power, see Manuel Cachón Cadenas,La buena fe en el proceso civil, inEstudios de derecho procesal 91 (2017). On the role of the judge in relation to procedural requirements (L.E. Civ. art. 461.1), see Montero Aroca, supra note 28, at 97. 31 Juan Montero Aroca, I principi politici del nuovo processo civile spagnolo (2002). 32 Proceso civil e ideología: Un prefacio, una sentencia, dos cartas y quince ensayos (Juan Montero Aroca ed., 2006). 33 Id.(2d ed. 2011). The 2011 edition contains important guaranteeist manifestos and an obituary of Cipriani by Montero, presented at a meeting held in Lima, Peru (see Juan Montero, Franco Cipriani, inProceso civil e ideología: Un prefacio, una sentencia, dos cartas y quince ensayos, supra, at 455). Montero recalls his first encounter with Cipriani in 1991—making Montero a precocious subject of the Storie di processualisti—as well as other exciting details. 34 On the Derecho Procesal Garantista (“Guaranteeist Procedural Law”) meetings (I, 1999; XV, 2018), see Reseña Histórica: Memoria de las Diversas Ediciones del Congreso, Facultad de Derecho: UNICEN, http://congresoprocesal.azul.der.unicen.edu.ar/resena-historica-1. (last visited Dec. 30, 2018) See also Congreso Nacional de Derecho Procesal Garantista, Facultad de Derecho: Universidad Nacional del Centro de la Provincia de Buenos Aires, www.der.unicen.edu.ar/congresoprocesal/programaActual.php (last visited Dec. 30, 2018). 35 José Carlos Barbosa Moreira, Evoluzione della scienza processuale latino-americana in mezzo secolo, 53 Rivista di Diritto Processuale 26 (1998). See recentlyVásquez Alfaro, supra note 16, at 117. 36 See Fernando Gama da Miranda Neto, Notas sobre a influência do direito material sobre a técnica procesual no contencioso judicial administrative, 4 Revista Eletrõnica de Direito Procesual 121, 133 (2009) (translated by author). 37 SeeVásquez Alfaro, supra note 16, at 122. However, the strong opposition of the legal classes reduced this code to a fleeting attempt (see L. 26/24, noviembre 5, 1924, Diario Oficial [D.O.] (Colom.), suspending L. 103/23, diciembre 5, 1923, D.O., also known as the Código Arbeláez (“Arbeláez Code”)). 38 The Revista de Derecho Procesal Argentina, published since 1943, stands out in this regard. 39 Hugo Alsina, Tratado teórico-práctico de derecho procesal civil y comercial (1941–1943). 40 Eduardo Couture, Fundamentos del derecho procesal civil (1942). 41 Santiago Sentís Melendo, Couture y su obra procesal, 16 Derecho PUCP Revista de la Facultad de Derecho 43, 45–48 (1957) (with references). 42 These are from his Draft Civil Trial Code (1945), reproduced verbatim in the preamble of the Código de Processo Civil [C.P.C.] [Code of Civil Procedure] 1973 (Braz.) (see recital no. 16) (translated by author). 43 Constituição Federal [C.F.] [Constitution] pmbl. (Braz.); Constitución Politíca de Colombia [C.P.] pmbl. (Colom.). 44 C.F. arts. 5.34, 5.52; C.P. art. 29. 45 C.F. art. 5.35. 46 C.P. art. 31. 47 C.F. art. 5.54. 48 Id. art. 5.55; C.P. art. 29 in fine. 49 C.F. art. 5.59; C.P. art. 228. 50 C.P. art. 229. 51 C.F. art. 5.73. 52 See American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143. Article 8 of the Convention establishes the right to be heard by an independent tribunal and within a reasonable time. Article 25 recognizes the right to the judicial protection of fundamental rights. Both of those precepts would lead to the rewriting of many procedural codes. The Convention has reached constitutional value in Colombia by L. 2/2001, diciembre 27, 2001, Diario Oficial [D.O.] (constitutional amendment), and in Brazil, by Emenda Constitucional No. 45, de 30 de Decembro de 2004, Diário Oficial da União [D.O.U.] de 31.12.1994. See Eduardo Oteiza, América Latina: Cultura y proceso civil, inProceso judicial y cultura: Una mirada global 199 (Mónica Bustamante Rúa ed., 2013). 53 See the preamble (recital no. 5) of the Código de Processo Civil [C.P.C.] [Code of Civil Procedure] 1973 (Braz.) (translated by author). 54 Instituto Iberoamericano de Derecho Procesal Secretaría General, El Codigo Procesal Civil Modelo para Iberoamerica (1988), www.iibdp.org/images/codigos_modelo/IIDP_Codigo_Procesal_Civil_Modelo_Iberoamerica.pdf [hereinafter Model Code of Civil Procedure 1988]. 55 A printed edition of the Model Code can be found in Un “Codice Tipo” di Procedura Civile per l’America Latina: Atti del Congresso Internazionale, Roma, 26–28 settembre 1988, at 515 (Sandro Schipani & Romano Vaccarella eds., 1990). 56 Model Code of Civil Procedure 1988, art. 1. 57 Id. (translated by author): The initiation of the trial is the responsibility of the interested parties; the court will do it ex officio only when the law expressly establishes it. The parties may dispose of their rights in the trial, except those that cannot be disposed of, and may terminate them unilaterally or bilaterally in accordance with the provisions of this Code. Among the judicial attributes of article 33 are the following: “rejecting the claim in limine, when it is manifestly unmeritorious, when it lacks the formal conditions required by law, or when a claim is made that is particularly subject to expiration and has expired” (subparagraph 1); “order the necessary diligences to clarify the truth of the facts in dispute, respecting the right of defense of the parties” (subparagraph 4); and “order at any time the presence of witnesses, experts and parties, to request the explanations that he deems necessary to the object of the lawsuit” (subparagraph 5). On the violent contrast between the quality of the doctrine and the persistent vices of justice, settled with the “socialization” of the civil trial and the protagonist role of the judge (“especially in terms of evidence instruction”), see the Brazilian publicist Moreira, supra note 35, at 30. 58 See Instituto Panamericano de Derecho Procesal, Proyecto de Código procesal general modelo para la justicia no penal de Latinoamérica (2016), www.academiadederecho.org/upload/Proyecto_de_Codigo_Procesal_General.pdf [hereinafter Model Code of Civil Procedure 2016], with notes by Adolfo Alvarado Velloso that offer a normative correlation and a systemic explanation of all legislated institutions. The drafters of the second model code are two Argentinean lawyers and proceduralists: Alvarado (general part of the code) and Omar Abel Benabentos (special part). The 28th Pan-American Meeting on Procedural Law (Sept. 6–7, 2017), was recently held to discuss the project. 59 Id. art. 2(1) (“Concept of Jurisdictional Activity”). 60 A note by Alvarado states on this point that “the initiation of a trial by the judge’s ex officio activity is completely ruled out.” See id. at 5 (discussing article 2) (translated by author). 61 Id. art. 1(6) (“Right to Effective Judicial Protection”). 62 See id. art. 62(4) (“Resolution Duties of the Judges”): Analyze the evidence material legally offered and produced by the parties that is in the file and resolve the case with strict adherence to the rules that govern the burden of proof. In case of doubt due to a lack of evidence that is convincing with respect to a controversial fact relevant to the adoption of a decision, he must apply the constitutional principle that orders absolving anyone who has no burden to prove (in dubio, pro reo). In turn, the rule on the decision-making powers of the court establishes that “all other informal evidentiary activity of the judge is null and void, as is the judicial resolution based on that evidence” (id. art. 72 in fine, “Decision-Making Powers of the Judge”). 63 See, for a general approach, Enrique Álvarez Cora, La arquitectura de la justicia burguesa: Una introducción al enjuiciamiento civil en el siglo XIX (2002). 64 Trade justice derives from the summary trial of canon law, as shown by Víctor Fairén Guillén, Lo “sumario” y lo “plenario” en los procesos civiles y mercantiles españoles: Pasado y presente (2006). In Spain, commercial lawsuits were regulated by the Code of Commerce (1829) and its own procedural law (1831), but merchant courts were abolished in 1868. I do not know what its destiny has been in the young Latin American republics, where the 1829 Code enjoyed considerable dissemination: see Ezequiel Abásolo, El código de comercio español de 1829 en los debates y las prácticas jurídicas del extremo sur de América, 78–79 Anuario de Historia del Derecho Español 447 (2008); 79 Anuario de Historia del Derecho Español 460 (2008–2009). 65 SeeLópez Medinasupra note 3, at 27. 66 De justicia de jueces a justicia de leyes: hacia la España de 1870 (Marta Lorente ed., 2007). 67 These are the so-called measures to better provide, which, in the words of the 1855 legislature (Ley de Enjuiciamiento Civil [L.E. Civ.] [Code of Civil Procedure] art. 48 (1855) (translated by author), were regulated as follows: The judges and courts may, to better reach a decision, 1) decree that any document they deem relevant to clarify the litigants’ right be brought before them; 2) demand judicial confession to any of the litigants, on facts that they consider of relevance for the matter and that have not been proven; 3) decree the undertaking of any examination or assessment that they deem necessary; 4) display any judicial resolutions related to the lawsuit. In the second Ley de Enjuicimiento Civil, 1881, the so-called measures to better provide were contemplated under articles 340–342, and continue to be regulated as such in the current law as “final proceedings” (arts. 434–436). But see also Codice di procedura civile [C.p.c.] art. 269 (1865) (It.) (translated by author): When the judicial authority does not find sufficient evidence in the report for the dismissal of the case, it can order the experts to give further oral clarifications at the hearing, or order a new appraisal to be performed by one or more appointed experts. The new experts can first request the explanations that they deem convenient to allow a certain “activity” in favor of the judge that other precepts maintain in this evidentiary matter (see C.p.c. art. 271, ex officio judicial inspection of the place or matter of dispute; on the liberal judge regarding witness evidence, see C.p.c. art. 243). Cipriani does not touch upon the matter: see Franco Cipriani, Giuseppe Pisanelli e il processo civile, inGiuseppe Pisanelli: Scienza del processo, cultura della legge e avvocatura tra periferia e Nazione 69 (Cristina Vano ed., 2005). 68 See Cipriani, supra note 6. 69 Id. at 63. 70 Juan Montero Aroca, El Derecho procesal en el siglo XX, at 75 (2000) (translated by author). The work has its remote origins in a seminar that was taught at the Universidad Nacional Autónoma de México (National Autonomous University of Mexico). 71 Id. at 74. 72 See, e.g., Jairo Parra Quijano, Racionalidad e ideología de las pruebas de oficio 44 (2004) (on Klein and the Zivilprozessordnung); see also id. at 54, 159 (on the relazione of the Italian Code, which was also published as an annex). On case management by common law judges, see López Medina,supra note 3, at 56. 73 The Colombian Code (L. 1564/12, julio 12, 2012, Diario Oficial [D.O.]) has been in force since January 1, 2016, under Agreement No. PSAA15-10392, Oct. 1, 2015, which was issued by the Administrative Chamber of the Superior Council of the Judiciary, once the training phase for judges and the technological adaptation of the courtrooms was completed. The Brazilian Code (Lei No. 13.105, de Março de 16 de 2015) entered into force on March 18, 2016. 74 See, e.g., Germán Ángel Benedetti, La verdad jurídica objetiva, ¿es la única respuesta correcta? Una visión desde el garantismo procesal, 2 Garantismo Procesal 56 (2011); William Esteban Grisales Cardona, La prueba en un Esquema Garantista, 3 Garantismo Procesal 99 (2012); José Mauricio Espinosa Gómez, ¿La inspección judicial en materia civil, como prueba extraprocesal es violatoria de derechos y garantías de las personas?, 5 Garantismo Procesal 120 (2012). 75 Pronounced in Congress by Senator Horacio Serpa (1987), reproduced inVásquez Alfaro, supra note 16, at 171 (translated by author). It is enough to consider the illegal occupation of land by paramilitary forces and the consequent vicious possession of certain landowners: see generally Andrés Botero Bernal, La utilidad o inutilidad de la posesión viciosa para la prescripción adquisitiva extraordinaria en Colombia, 17 Revista Jurídica Universidad Autónoma de Madrid 49 (2008). 76 Vásquez Alfaro,supra note 16. 77 Constitución Política de Colombia [C.P.]. 78 See Corte Constitucional [C.C.] [Constitutional Court], mayo 12, 1992, No. ST-006, quoted inVásquez Alfaro, supra note 16, at 185 (translated by author). Among the abundant literature on the matter, see Liliana Carrera Silva, La acción de tutela en Colombia, 5 Revista Ius 72 (2011). 79 “Those are duties of the person and citizen: . . . 7. To collaborate in the proper functioning of the administration of justice.” See Mabel Londoño Jaramillo, Deberes y derechos procesales en el Estado social de derecho, 11 Opinión jurídica 69, (2007) (translated by author). 80 SeeInstituto Colombiano de Derecho Procesal, www.icdp.org.co (last visited Mar. 12, 2015). The Institute was established in 1969—under the impetus and direction of Hernando Devis Echandía and Hernando Morales Molina, who are largely responsible for the Code of Civil Process of 1970 (Decreto No. 1400, agosto 6, 1970). The new code was developed by the Institute starting in 2003, with Jairo Parra—a distinguished publicist jurist—as the Institute’s President. 81 The judge must “use the powers granted by this Code in matters of ex officio evidence to verify the facts alleged by the parties.” C.P. art. 42.4 (translated by author). 82 See Corte Constitucional [C.C.] [Constitutional Court], febrero 24, 2016, SCC-086/2016, www.corteconstitucional.gov.co/relatoria/2016/C-086-16.htm (last visited Dec. 30, 2018) (translated by author), where Judge Jorge Iván Palacio stated: [T]he challenged norm cannot be interpreted in isolation of the purposes and principles that guide the General Code of the Trial and that therefore have binding force. This means that the judge, as the director of the trial, must be vigilant to fulfill his mission within the framework of a social and democratic state based on the rule of law, either by resorting to his unofficial attributions in the ordaining and administering of evidence, or to make a reasonable distribution of the burden of proof according to the position in which the parties are in each case. 83 Alvarado Velloso, supra note 19, at 104 (translated by author). A new code of criminal procedure (Código de Procedimiento Penal) has been in force in Colombia since 2004 (L. 906/04, agosto 31, 2004, Diario Oficial [D.O.]), which has incorporated the common law adversarial system. However, the reform of the trial, especially the criminal trial, has been one of the measures imposed on Colombia within the framework of the new policies promoted by the financial institutions of global governance (i.e., the World Bank, the International Monetary Fund, and the World Trade Organization): seeCésar Rodríguez Garavito et al., ¿Justicia para todos? Sistema judicial, derechos sociales y democracia en Colombia (2006). 84 See Luís Correia de Mendonça, 80 anos de autoritarismo: uma leitura política do processo civil portugués, inProceso civil e ideología 381 (Juan Montero Aroca ed., 2006). See alsoLuís Correia de Mendonça, Direito processual civil: As orígens em José Alberto dos Reis (2002). The distinguished magistrate Mendonça has also offered the most complete exposition of the thesis and work of Cipriani: see Luís Correia de Mendonça, O Pensamento de Franco Cipriani sobre a Justiça Civil, 2 Revista do Centro de Estudos Judiciários 65 (2005). Recently, the translation and publication in Brazil of Proceso civil e ideología was announced: see Jefferson Carús Guedes, Direito processual de grupos sociais atual: Entre o ativismo judicial e o garantismo procesual, 6 Revista brasileira de políticas públicas [Rbpp] 115, 116 (2016). 85 See Leonardo Greco, Publicismo e privatismo no processo civil, 33 RdP 29 (2008). Leonardo Greco was Alfredo Buzaid’s adviser when the latter, at the time the Minister of Justice, promoted the Code of Procedure in 1973. 86 It seems the influence of Italy persists. A few years ago, in 2014, the conference I Colóquio Brasil–Itália de Direito Processual Civil was held in São Paulo. It was coordinated by Camilo Zufelato, Giovanni Bonato, Heitor Vitor Mendonça Sica, and Lia Carolina Batista Cintra. 87 By Ato No. 379, Sept. 30, 2009, a commission of experts was set up to prepare a preliminary draft, consisting of Adroaldo Furtado Fabricio, Bruno Dantas, Benedito Cerezzo Pereira Filho, Elpídio Donizetti, Teresa Arruda Alvim Wambier, Humberto Theodoro Júnior, Paulo Cezar Pinheiro Carneiro, Luiz Fux, Jansen Fialho de Almeida, José Miguel Garcia Medina, José Roberto dos Santos Bedaque, and Marcus Vinicius Furtado Coelho. 88 It was those ascribed to the “guaranteeist-privatistic” school who spoke of “procedural gattopardismo,” fearing that the new code would reproduce the content of the 1973 code: Glauco Gumerato Ramos, Actual debate en el procesalismo brasileño: ¿garantismo o activismo?, 221 RdP 381 (2013). 89 See Rodrigo Daniel Silva, O novo CPC não é uma revisão do Código de 1973: É muito diferente, Consultor Jurídico (July 2, 2014), www.conjur.com.br/2015-mar-17/avancos-retrocessos-cpc-publicado-diario-oficial) (interview with Fredie Souza Didier Jr.) (translated by author). 90 José W. Bezerra da Costa Neto, O novo Código de Processo Civil, 249 RdP 81 (2015) (quoting Paulo Henrique dos Santos Lucon: see Novo CPC é publicado e, para advogados, traz segurança jurídica, Consultor Jurídico (Mar. 17, 2015), www.conjur.com.br/2015-mar-17/avancos-retrocessos-cpc-publicado-diario-oficial) (translated by author). 91 Constituição Federal [C.F.] [Constitution] art. 8 (Braz.) (translated by author). 92 This responds to the constitutional norm requiring that judicial decisions be motivated: see Id. art. 93xi. 93 Id. art. 370. 94 Id. arts. 190–191. 95 President Rousseff’s veto of the long article 333 of the C.P.C., which allowed for the transformation of the individual trial into a collective trial, expresses such guaranteeist balance. See José Rogério Cruz e Tucci, Contra o processo autóritario, 242 RdP 49 (2015). 96 José de Celso Mello Filho, President of the Supreme Federal Court (1997–1999), quoted in Sílvio Dagoberto Orsatto, The Role of the Judiciary in the Constitutional State Under the Phenomenon of Judicialization of Public Policies in Brazil, 5 Rbpp 239, 242 (2015). 97 Gumerato Ramos, supra note 88. 98 SeeJefferson Carús Guedes, Igualdade e desigualdade no processo civil: O processo civil como técnica compensatória de desigualdades sociais (Nov. 19, 2008) (unpublished Ph.D. dissertation, Pontifícia Universidade Católica de São Paulo), https://tede2.pucsp.br/handle/handle/8383 (translated by author). 99 SeeMiguel A. Ruiz Albert, El lanzamiento de vivienda como proceso de ejecución con todas las garantías 2012) (unpublished Ph.D. dissertation, Universidad de Huelva), http://rabida.uhu.es/dspace/handle/10272/6594. Author notes Professor of Legal History and Comparative Law, University of Huelva, Spain. © The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Due Process and Civil Procedure, or How to Do Codes with Theories

American Journal of Comparative Law , Volume 66 (4) – Dec 31, 2018

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Oxford University Press
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© The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
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0002-919X
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10.1093/ajcl/avy048
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Abstract

Abstract Franco Cipriani’s historical research on the great authors of “scientific proceduralism” (Giuseppe Chiovenda, Francesco Carnelutti, and Piero Calamandrei) made it possible to elaborate a theory of the civil process: “guaranteeism.” The theory holds that the lawsuit is a legal relationship between private parties, and the judicial authority only acts in the trial as an impartial bystander. This is opposite the procedural tradition of the twentieth century that accentuates the legal–public nature of the process and therefore the autonomy and activity of the judge to come to a fair resolution. The wide acceptance of the Italian classic authors on civil procedure in Spain and Latin America explains the impact that Cipriani’s “revisionist” work had in several countries and the tension between guaranteeism and activism in their codified regulation of the trial. From that point of view, this Article analyzes the most recent codes of civil procedure, those of Colombia and Brazil. If historiography has led to theory, it is interesting to find out whether theory leads finally to legislation. What I shall have to say here is neither difficult nor contentious; the only merit I should like to claim for it is that of being true, at least in parts. The phenomenon to be discussed is very widespread and obvious, and it cannot fail to have been already noticed, at least here and there, by others. Yet I have not found attention paid to it specifically. John L. Austin1 A wave of reforms affecting the civil trial is sweeping across Latin America. The new Spanish Civil Procedure Code (Ley de Enjuiciamiento Civil, 2000) was followed by those of Honduras (2007) and El Salvador (2008). Some ten years later came those of Colombia (Código General del Proceso, 2012), Bolivia (2013), Brazil (2015), Nicaragua (2015), Ecuador (2015), and Costa Rica (2016), among others. There are, moreover, a number of law reform projects underway (e.g., Chile, 2012). The primary focus of the debate underlying such reforms is the role of the judge in the trial. For a large number of jurists, civil lawsuits primarily concern private subjects, where the judge, as an impartial third party, presides over procedural acts in order to guarantee the rights of the plaintiff and the defendant. For others, the judge must seek substantive equality between parties who are usually socially and economically unequal. The state guarantees this by granting the judge broad powers of intervention. The conceptual duality between the “guaranteeism” (of the parties) and the “activism” (of the judge) expresses such opposition. As such, any legislative novelty is analyzed in accordance with those parameters.2 It is not my intention here to review the intense rewriting of the civil trial in Latin America.3 I am interested, instead, in recalling the theoretical basis underlying the discussions.4 More particularly, I intend to demonstrate that the so-called guaranteeist theory, which lies at the center of the debate, is based on a historical reconstruction of the modern doctrines of procedural law (dating from the twentieth century) that were developed—hereby lies the originality—by experts in current law. History has led to theory, and theory has led to legislation. That historical reconstruction was carried out in Italy by Franco Cipriani (1939–2010). Professor of Civil Procedure Law at the University of Bari and a renowned scholar of family and marital procedure, Cipriani produced, at the end of the past century, two extensive volumes that challenged the prevailing vision of the Italian civil trial.5 It should be noted that the Code of Civil Procedure (Codice di procedura civile, 1940–1942), which was promulgated under the Mussolini regime, is still in force in Italy, and therefore, at least in principle, is subject to criticism because of the political circumstances that surrounded its enactment. Knowing and understanding how the modern canon of procedural science was forged (by a triad consisting of Giuseppe Chiovenda, Francesco Carnelutti, and Piero Calamandrei), and what theoretical model underpins the Code of Civil Procedure of 1940, was the main objective of Cipriani’s work. His Storie di processualisti e di oligarchi: La procedura civile nel Regno d’Italia (1866–1936), published in 1991, pursued that double purpose. The publication dealt with the professional career of the great masters, with a special focus on the forgotten legal scholars (in particular, the professor, judge, politician, and reformer Ludovico Mortara, but also Luigi Mattirolo before him and Carlo Lessona afterward) and on their texts, including the personal anecdotes that gave a basis and meaning to the doctrines. Bearing in mind that the history of the 1940 Code overlaps with the definition of theoretical archetypes and the collaboration of the experts on the civil trial with the fascist legislators (the ministers Arrigo Solmi, Alfredo Rocco, Pietro De Francisci, and Dino Grandi), the academic intrigues that Cipriani discloses explain genuine legislative policy challenges. For this very reason, the second great contribution of Cipriani was entitled Il Codice di procedura civile tra gerarchi e processualisti (1992), which he openly described as a naturale prosecuzione (“natural continuation”) of his Storie di processualisti e di oligarchi. As far as the development of civil procedure is concerned, Italy’s role is of utmost relevance. It was the first southern country to adopt the theory of scientific proceduralism that was developed in Germany (by Oskar von Bülow, 1837–1907, and Adolf Wach, 1843–1926). This theory offered a systematic vision of the trial, understood as an autonomous legal relationship—between the plaintiff, the defendant, and the judge—articulated around the concept of “action,” that is, the right to request the judicial intervention of the state when a legal dispute arises. In general terms, it was under the influence of Vittorio Scialoja (1856–1933)—Antonio Scialoja’s son, a great figure of the Risorgimento, Dean of the University of Rome’s Faculty of Law, and several times minister—that Italian jurists underwent intense Germanization between the end of the nineteenth century and the beginning of the twentieth century. It fell upon Vittorio’s young disciple, Giuseppe Chiovenda (1872–1937), to continue this trend concerning procedural law, which was driven by admiration for the oral trial introduced by the Austrian Minister of Justice Franz Klein’s Zivilprozessordnung (1895)—a genuine model code for his Italian colleagues.6 Italy was also the cradle of the first scientific journal dedicated entirely to an analysis of the civil trial. The Rivista di Diritto Processuale Civile (referred to simply as the Processuale), was founded in 1924 by Francesco Carnelutti (1879–1965), with the support of Chiovenda, and which had Piero Calamandrei (1889–1956) as head of its editorial board. Whether the Processuale—with a sustained focus on comparative law7—offered an intellectual forum to the (authoritarian) fascist conception of justice (as one may suspect, given the time of its founding) is a debated issue that the works published in it do not allow one to perceive clearly.8 The influence of Chiovenda among his compatriots was reinforced, in the third place, through the early influence he exercised over Spanish law professors. For example, José Casais Santaló (1894–1971) translated Chiovenda’s influential Principii di diritto processuale civile into Spanish 1922–1925. Casais Santaló was in fact his first Hispanic disciple9 specializing in the emerging “scientific procedural law” during a research stay at the University of Rome. In general, the growing outflow of young Spanish university students abroad to widen their studies in procedural law would have immediate repercussions. By the second decade of the twentieth century, a profound renewal of procedural studies was already underway in Spain, and would continue to pick up speed in the following years. Such renewal essentially consisted in the introduction, dissemination, and reception in our country [Spain] of procedural dogmatism, that is, what has also been denominated, perhaps not quite appropriately, scientific proceduralism, which had been experiencing an extraordinary boom in Germany since the second half of the nineteenth century, and in Italy since the beginning of the twentieth century.10 Next came the Spanish edition of La condanna nelle spese giudiziali,11 translated in 1928 by Juan A. de la Puente, with a preface by Josep Xirau (1893–1982), a professor of procedural law in Barcelona. Xirau’s preface introduced his admired Italian colleague and his theories to the Spanish-speaking public.12 In reproducing almost verbatim the opinions of Piero Calamandrei, Xirau also reflected an interest in displaying the intellectual originality of Chiovenda, against the accusation that the latter had merely imported German dogmatism.13 The participation of Spanish specialists in the studies dedicated to Giuseppe Chiovenda (in addition to Xirau, contributors included Francisco Beceña, 1889–1936) ultimately reflected the mutual intellectual respect and an assiduous exchange between the academics of both countries.14 The brief observations above suffice to prove the existence of a network of influences and ideas around the civil trial that extended from central Europe to the Mediterranean, and which reached Spain to offer a limited but incisive collection of texts on “scientific procedural law” for use by experts from Latin America.15 The traditional relationship between Spain and its former colonies—a key element in understanding codification in the new states16—led to the dissemination in Latin America of German–Italian doctrines on the civil trial, which had been already well established in Spain since the 1920s. European totalitarianism and war, which brought German (James Goldschmidt, Uruguay), Italian (Tullio E. Liebman, Brazil), and Spanish (Niceto Alcalá-Zamora, Mexico; Santiago Sentís Melendo, Argentina) specialists in procedural law to Latin America fostered the propagation of so-called scientific proceduralism in the host countries, where local schools were formed and new translations published.17 It is worth recalling, in this regard, that the introduction to the Brazilian Código de processo civil (1973), which was drafted by Alfredo Buzaid (1914–1991), a Brazilian disciple of Tullio Liebman and later the Minister of Justice of the federal government (1969–1974), opens with a quote from Chiovenda.18 “All the procedural doctrine published on the continent since the 1950s,” wrote Adolfo Alvarado Velloso, a well-known Argentinean author, “has contributed greatly to [the reception of the European classics on the civil trial] because those who, until this moment, teach the subject in the different [universities] of America, were trained through their reading and study.” In this regard, he highlighted “the doctrinal influence of . . . the EJEA [Ediciones Jurídicas Europa América] publishing house, which, for many years, was devoted to translating the most outstanding works of Italian and German proceduralism . . . . And all of us Latin Americans absorbed them and convinced ourselves of their virtues, without realizing—until very recently, thanks to Franco Cipriani—that all the translated authors were commenting on either the Nazi law of 1937 or the fascist law of 1940.”19 The broad communication channel between Italy, Spain, and Latin America explains why Cipriani’s work enjoyed the same fortune as the contributions of the old masters. Indeed, a number of their imported works were of relevance both to Spain and to the Latin American countries that were placed under the influence of Italian doctrine. These doctrinal influences included the following: (1) reviewing the doctrines of the civil trial; (2) denouncing the Codice di procedura civile as, in the words of Calamandrei, “the most fascist among the fascist codes,”20 and (3) citing the Italian civil trial, whose principles (orality, immediacy, concentration) were based on Klein’s authoritarian Prozessordnung (i.e., opposed to the protagonist role of the parties in favor of the powers of the judge).21 Indeed, the debate unleashed by Cipriani’s Storie in Italy not only transcended the legal journals there and made it into the daily press,22 but it was further reflected in Spanish bibliography on procedural law. It fell upon Juan Montero Aroca (University of Valencia) to review that publication (“a sort of personal and intellectual judgment”, a sort of indictment of the patres, he wrote23)—a book with the capacity of stirring contemporary literature on procedure.24 Manuel Cachón Cadenas (Barcelona), another expert in the field, offered, however, the most interesting reading. He crossed Cipriani’s data and observations with the avatars of the Spanish doctrine influenced by Chiovenda to conclude that the Storie suggested “a new and original interpretation of the evolution of contemporary procedural thought in Italy,” which conforms to “a counter-history against the version that had ultimately imposed itself, becoming quasi-official in Italian proceduralism, and, as a consequence of its diffusion, in Spanish and Latin American.”25 In fact, Cachón’s work is much more than a review, for it documents the Spanish presence, early on, of the “official version” that was developed in Italy—even before it was circulated there—of the theories and technical resources underlying the Codice di procedura. At any rate, the works of Montero and Cachón followed divergent paths. Cipriani’s work was a critical historiography that reviewed the doctrinal trajectory and questioned translational affirmations by leaning on a collection of unpublished sources. It had two effects. The first was inspiring Manuel Cachón Cadenas, today considered Spain’s main expert on the history of the civil trial and on the Spanish proceduralists during the late eighteenth to mid-twentieth centuries.26 The second effect of Cipriani’s contribution was influencing Juan Montero. It consisted in the presentation of a procedural archetype that can be described as “liberal,” “guaranteeist,” or “privatistic,” and that is thus presented for the consideration of any legislator, both in Spain and in Latin America. The replacement in Spain of the centennial Ley de Enjuiciamiento Civil (1881) enabled the formulation of the archetype of the guaranteeist trial. Upon the entry into force of the new procedural code (2000),27 Montero offered an immediate assessment of this important reform: “It’s about reconsidering what the civil trial has been and what it can be.”28 Indeed, his publication—the first to combine in its title the terms “policy” and “civil trial”—provides a reflection on the procedural order that emerged in Spain in the twenty-first century. It presents the Spanish civil procedure as an oral trial in which the parties defend their rights with a remarkable measure of autonomy, but where the judge retains broad control powers,29 which are at times reinforced.30 Montero’s publication was widely echoed. It was soon translated into Italian—an extraordinary occurrence—with a preface by Cipriani himself that stirred up controversy and associated the names of Cipriani and Montero as the main champions of the guaranteeist cause.31 The translation further served as an excuse to publish a second book under Montero’s supervision (Proceso civil e ideología, 2006), with diverse materials and significant participation by Latin American experts.32 The complexity of the book can be inferred from its subtitle (Un prefacio, una sentencia, dos cartas y quince ensayos): “A Preface,” that is, Cipriani’s contribution to the Italian version of Principios políticos (entitled “The Italian Civil Trial Between Revisionists and Deniers”); “Two Letters” (inspired by a controversial Argentinean judicial resolution); and “Fifteen Essays” by several Italian and Spanish as well as Latin American authors (from Argentina, Brazil, and Peru), including a valuable contribution by a Portuguese author—though not all of these essays represented the guaranteeist trend. The second edition of Proceso civil e ideología33—a reflection of its wide influence—included new texts by Montero and annexes containing motions on the “guaranteeist procedural law” that were approved at the Azul congresses (Argentina).34 As a result of this relentless effort, Montero’s collection has become the reference work in discussions on procedural models. Several reasons, both historic and present, justify the liveliness of the Latin American debates.35 First, the influence of the Italian doctrine, with its publicist formulas favorable to the powers of judges, became apparent in the 1930s, when, for example, the first republican procedural code was promulgated in Brazil (1939). On that occasion, Luiz Machado Guimarães, a well-known commentator on the code, stated that “the function of the trial is no longer to restore individual rights that have been violated, but rather to restore and secure, through the definition of litigation, the rule of law.”36 In 1923, Klein’s publicist model had made its way, with remarkable precocity, into Colombia through the so-called Arbeláez Code (i.e., “cautious judgments” [juicios de prudencia], “informed judgments” [juicios con conocimiento de causa], and the “prevalence of substantive law” [prevalencia del derecho sustancial]).37 Italian dogmatic theories were also received and reinforced by the presence of exiles, Ibero-American congresses, the founding of specialized journals,38 and the works of local proceduralists, such as the Argentinean Hugo Alsina (1891–1958)39 and the influential Uruguayan professor Eduardo Couture (1904–1956).40 This wave of genuine scientific proceduralism, which helped train the next generation of scholars (e.g., Alfredo Buzaíd, Brazil; José Ramiro Podetti, Argentina; Hernando Devis Echandía and Álvaro Leal, Colombia),41 was accompanied by a new generation of codes (e.g., Guatemala, 1963; Argentina, 1967; Colombia, 1970; Brazil, 1973). However, it did not take long for those codes to prove insufficient in improving the efficiency of civil justice in light of, as Couture put it, the “problems that the social, economic, cultural, and ethical reality presents to the legislator.”42 Finally, the fall of dictatorships and the post-conflict legal framework (expressed in the democratic constitutions of Brazil, 1988; Colombia, 1991; and Argentina, 1994), raised the question of the constitutional basis of the civil trial, which was now the object of new treatment. Thus, the following elements acquired constitutional value: justice as a supreme value,43 the judicial protection of rights,44 the guarantee of res judicata,45 the right to recourse,46 the audi alterem partem principle and the right to counsel,47 the nullity of unlawfully obtained evidence,48 the publicity of the trial with respect to the right to privacy,49 free access to courts,50 and free legal aid for litigants without economic means.51 Those new constitutions were developed on the basis of the American Convention on Human Rights, which has been ratified by more than twenty states in the region.52 “The civil trial is an instrument that the state offers the litigants in order to administer justice,” protested the Brazilian lawmaker in 1973: It is not intended to simply define rights in the private struggle between the contenders . . . . The interest of the parties is not only a means which serves to achieve the purpose of the trial, insofar as it gives rise to that impulse intended to satisfy the public interest of legal action in the configuration of conflicts.53 It was this publicist vision of the trial, conceived as an instrument in the service of the law, rather than as a means of repairing the violated rights of citizens, that conformed to the ideology that thrived in Latin American codes and the discussion in favor of the guaranteeist cause. The so-called Model Code of Civil Procedure (1988),54 a theoretical-practical product of the Instituto Iberoamericano de Derecho Procesal and the work of the Uruguayans Enrique Vescovi, Luis A. Torello, and Adolfo Gelsi Vidart, offered a good basis for debate.55 The text of the Model Code, of high interest to the legislative movements of the region (e.g., Chile, Uruguay), leans toward a publicist orientation, still dominant in Latin America. On the one hand, the Model Code still allows a civil trial to be initiated ex officio, although the possibility is subject to legal authorization.56 On the other hand, it enshrines the role of a powerful judge, capable of rejecting the demand and controlling the evidence phase of the trial.57 Both solutions have been present in the latest reforms, driven by a “common sense” that links, in a cause–effect relationship, “slow trials,” “injustice,” and the “weakened judge.” One could claim that the Model Code has attempted to balance the position of the parties with that of the judge who has the obligation of redressing the material inequalities that separate them and who seeks the material truth and (distributive) justice at any price (that is, at the price of the liberties of the litigant according to guaranteeist proceduralists). The sharp contrast between procedural ideologies has recently led to a second Model Code, which was developed, within the framework of the Instituto Panamericano de Derecho Procesal, on the basis of guaranteeist postulates.58 Hence, against the hypothesis of an ex officio initiation of the civil trial—an element that is undoubtedly “inquisitive” according to the guaranteeist view—the said code links the exercise of judicial activity to the initiative of the party, thus excluding jurisdiction in the absence of a lawsuit.59 In other words, the second Model Code proclaims absolute respect for the principle under which the parties delimit the scope of proceedings.60 In addition, the impartiality of the judge, who is placed above the parties, is enshrined with emphasis: “without completing their insufficient affirmations, evidence, or objections, or informally redressing their errors, except those that affect the procedural relationship in such a way that they impede the pronouncement of a judicial resolution of useful merit on the merits of the dispute.”61 Furthermore, when the evidence is not sufficient to resolve the dispute, the judge must rule in favor of the defendant (in dubio pro reo) without soliciting further evidence of the judge’s initiative.62 Have those models or, more generally, those ideologies, had an influence on the procedural codes of Colombia and Brazil, the most recent in Latin America? Before addressing this question, I would like to point out the historiographical dependence of the two opposing theories. When considering the guaranteeist perspective—as opposed to the publicist theory—I observe two notable prejudices at stake.63 The first is expressed in positive terms and consists of the guaranteeist description of the liberal-state civil trial as a space conceived by the legislator at the exclusive service of the private citizen. From a procedural point of view (i.e., trial phases and proceedings), such a trial reflects the survival of the solemnis ordo iudiciarius that was present in the old European ius commune and, therefore, of a slow and written conduit—a kind of ritual duel that was undertaken before an impassible judge. Swift and expeditious judgments were rendered only in matters of commerce; these were dealt with by merchant courts, derived from a tradition of autonomy.64 Although the slowness and the multiplicity of procedures have been the subject of guaranteeist criticism, the passive role of the judge or, to put it another way, the leading role of the parties (the well-known principle according to which the parties delimit the scope of proceedings) draws praise for the nineteenth century codes. The iconic representation of justice as a blindfolded female figure—a representation apparently dating back to the nineteenth century65—clearly expresses judicial passivity, which is the basis of its (constitutive) impartiality. Now, that idealized vision of the old procedural codes rests on a simplification that is plagued with severe omissions. Without going into the dependence of justice (conceived of as “administration” rather than “power”) on the executive,66 I will limit myself to highlighting a neglected question, which is by no means minor. The procedural laws of 1855 and 1881—and perhaps not only those two Spanish legal texts—granted the judge the power to request new evidence when the assessment of the evidence brought forward by the litigants did not allow him to assess the facts in court.67 This was clearly not a guaranteeist formula. Second, from a negative perspective, guaranteeism describes as “authoritarian” and “publicist” the civil trial that made its way into Europe with the Austrian Ordinance of Klein, theorized by the German–Italian authors of the “scientific” doctrine.68 In telling the “story” of the civil trial—from the enlightened despotism of the Josephine procedural ordinance69 to the legal socialism of Anton Menger and of Klein himself, to fascism, to Nazism, and on to Soviet law—the guaranteeist critique links this conception with the terrible dictatorships of the 1920s and 1930s. The conclusion is clear. As Juan Montero writes: It has not been highlighted enough that the codes in which judges have been granted greater powers were promulgated precisely in countries and at times when those judges were less independent, which resulted in that, in the end, by granting them those powers, the interference of the Executive Power in the effectiveness of the subjective rights of citizens was being strengthened.70 If it happens that a guaranteeist legal text, such as the liberal Spanish Ley de Enjuiciamiento Civil (2000), still grants the judge the ability to request evidence, or introduces the principle of good faith, then this responds to the amendments presented by the Left during the parliamentary debates that preceded its adoption.71 In this case, the effort made by the publicists to point out the historical prejudices on which the guaranteeist theory is based has been quite straightforward: it does not seem legitimate to equate authoritarianism with totalitarianism, even when referring to the legal position of the civil judge in the twentieth and twenty-first centuries as “authoritarian.”72 My analysis so far allows us to next approach the abovementioned codes: the Colombian Código General del Proceso (C.G.P.) and the Código de Processo Civil (C.P.C.) of the Federative Republic of Brazil, both in force since 2016.73 In Colombia, there is a small but strong and active group of guaranteeist scholars at the University of Medellin. There is even a young journal (Garantismo Procesal, active since 2011) that is closely linked to the teachings of the Argentinean Alfredo Alvarado Velloso.74 Nonetheless, it must be said that the new procedural code has remained within the coordinates of “publicism.” On the one hand, the authority of the abovementioned Hernando Devis Echandía, who was favorable to the reinforcement of the powers of the judge for the sake of a social and effective trial, was present in the debates concerning the overhaul of the 1970 Code of Civil Procedure, at a time when there existed broad consensus on the limits of Colombian justice: “One of the factors of the atrocious violence that plagues Colombia is the poor result offered by a jurisdictional apparatus that does not decide with the required promptness, cannot properly investigate the illegal acts committed, and does not uncover or sanction the criminals.”75 On the other hand, a “scientific procedural renewal”76 has been underway since 1991, owing to the Political Constitution (C.P.).77 This renewal ushered in the constitutional “actions of guarantee” (acciones de tutela, Article 86 C.P.) against the judgments of the courts—an important instrument for turning Colombian judges into “zealous guardians of the substantive equality of the parties involved in the trial.”78 Finally, if one considers the theory of procedural duties contained in Article 95.7 C.P. (good faith, the propriety of the parties, the rejection of unwarranted actions, all placed under the power that corresponds to the judge),79 one understands the publicist vocation of the doctrine, now conceived as a “constitutionalist” current (pertaining to the constitutionalism of the social and democratic state based on the rule of law), which was made apparent in the 1989 reform and was upheld in the new codification of 2012–2016. The model described was prevalent among experts when the Instituto Colombiano de Derecho Procesal intervened in the drafting of the new code.80 A quick look at its provisions shows that, despite the existence of guaranteeist voices, the Colombian lawmaker upheld and perfected the publicist model of German–Italian origin, reinforced in this case by the desperate search for remedies to the harsh conditions of life in societies that do not know the welfare state. Indeed, article 4 of the C.G.P. establishes that “the judge must make use of the powers that this Code grants him to achieve real equality between the parties”; this is further emphasized in article 42.2, which deals with the “judge’s duties.” The wording of article 42.2 is clearly more emphatic than that contained in the equivalent precept of the aforementioned Model Code (compare article 4: “The court must uphold the equality of the parties in the trial.”). Further, article 42.4 fully admits ex officio evidence.81 Still with regard to matters of evidence, the possibility that article 167 C.G.P. grants the judge the power to distribute the onus probandi between the parties (that is, the theory of the dynamic burden of proof) was challenged early on before the Constitutional Court. However, in ruling that the questioned precept was constitutional, the Court reinforced the judge’s position.82 For this reason, Alvarado Velloso, a supporter of the guaranteeist trend, has written—fearing perhaps the legislation in force at present—that “Colombia will now have the most authoritarian civil procedure code in Latin America, coexisting with the criminal procedure code, which is one of the most libertarian codes on the continent. What a strange destiny this country has!”83 Although the controversy raised by guaranteeism has been primarily expressed in Spanish—several works of Cipriani were translated into Spanish thanks to the enthusiasm of Eugenia Ariano (Peru)—the participation of guaranteeist jurists in international forums, and the existence of Portuguese followers of the proceduralists, has further favored the circulation of the theories of that school in Brazil.84 My observation is completed with a reference to the work of Professor Leonardo Greco (Rio de Janeiro), a local expert familiar with European literature who, shortly before a procedural reform was discussed in Brazil, exposed the guaranteeist theory there. Thus, Cipriani’s name and work became a doctrinal reference and the intellectual base of a “privatistic” school.85 Let us recall in this regard that, originally, the procedural codes of 1939 and 1973 were both deeply influenced by Italian law and theories.86 In fact, the reform of the civil procedure system received no particular impetus, nor was it unanimously requested by the Brazilian doctrine. A discredited parliament that aspired to present legislative results in order to justify its existence undertook the codification of the trial against the backdrop of the always-attractive discourse of improving and expediting justice. Suffice it to recall that, in those days of profound political controversy—including the unusual impeachment of President Dilma Rousseff—among the country’s more than five hundred congressmen, almost three hundred have been or are still being investigated in criminal cases, whereas in the Senate almost fifty of the eighty-one senators are in the same situation. In such a flawed climate, the procedural code seemed like a good excuse. At any rate, it was approved with rare unanimity. The Brazilian code has two souls. The commission of experts who drafted the preliminary bill on behalf of the Senate,87 was guided, in line with the tradition of the codes of 1939 and 1973, by a publicist text that reflected the teachings of Joseph Carlos Barbosa Moreira.88 When the draft code was presented before the House of Representatives, where other experts were present (in particular, Fredie Souza Didier Jr., adviser to the rapporteur of the draft bill, Deputy Barradas) it took a somewhat guaranteeist turn. The same Fredie Didier admitted that the corruption scandal known as mensalão, the timing of which coincided exactly with the processing of the procedural code (the mensalão trial began on August 2, 2012), generated “a perception among the parliamentarians that it was necessary to reduce the powers of judges. They clearly took a different stance regarding the power of the judge.”89 Contrary to the hasty accusations leveled at the draft code—namely, that it proposed a mere cosmetic reform—the new C.P.C. that emerged following the parliamentary debates actually strikes a balance between the procedural models that have been discussed. “What characterizes the new procedural legislation with regard to the relation between the state and the individual is the collaboration and the dialogue between the procedural subjects.”90 In fact, the active role of the judge seems to offset the legal requirement of the opinion of the parties. This is perhaps best expressed in article 357 of the new code. Although it grants the judge, on the one hand, extensive powers in the handling of the case, it demands, on the other hand, the agreement of the litigants and the consideration of their suggestions on the organization of the procedure. The civic mandate of article 8 is also worth noting: “When applying the legal system, the judge will attend to social purposes and the requirements of the common good, safeguarding and promoting the dignity of the human person and observing proportionality, reasonableness, legality, publicity, and efficiency.”91 Indeed, the principles mentioned in article 8, which are subject to interpretation, must be read alongside article 489(2), that is, on the basis of the following judicial duty: “in case of a conflict between norms . . . to justify the object and the general criteria underlying the deliberation made, by stating the reasons that authorize the interference in the distant norm and the factual premises upon which the conclusion is based.”92 While the judge retains considerable powers with regard to evidence,93 the Code also admits contrats de procédure,94 thereby ending the doctrinal controversy over the acts of the parties delimiting the scope of the case with a pronouncement in favor of conventionality in trials.95 When the state incurs unconstitutional omissions, which are always both illegitimate and deeply damaging to the fundamental rights and freedoms of individuals, institutions, and the community itself, the intervention of the judiciary, notably that of this Supreme Court, is justified in order to overcome incomprehensible situations of inertia exposed by the instances of power in which the Brazilian state apparatus is pluralized.96 It may well be. However, it is still possible to think that an “institutional activism” favorable to the citizen corresponds, above all, to the executive and legislative branches of the state, judicial power being technically impartial, especially regarding civil cases.97 It even seems possible to distinguish—a relevant problem that is nevertheless ignored in discussions on procedural ideologies—the simple declaration of a right, which is a procedural moment in which the guaranteeist theory and the formal equality between the litigants must prevail, and the execution of the judicial resolution that recognizes the declared right when, to employ a recent title, the civil trial acts as a “compensatory technique of social inequalities.”98 During the “social moment” of the executive judgment, the “active” powers of the judge would come into play. Depending on the circumstances of the case, the judge can take the material and personal conditions of the losing party into account and invoke, if necessary, the help of other instances (social assistance services, health administration, and public housing companies) before executing in ordinary life the right that has been declared in the abstraction of a legal debate.99 A synthesis of (apparently) opposed models could thus be reached. This titillating matter undoubtedly deserves careful exploration. Footnotes 1 John L. Austin, How to Do Things with Words 1 (Clarendon Press 1962) (1955). 2 See, e.g., José W. Bezerra da Costa Neto, O novo Código de processo civil e o fortalecimento dos poderes judiciais, 249 Revista do Processo [RdP] 81 (2015). 3 SeeDiego E. López Medina, Nuevas tendencias en la dirección judicial del proceso (Super. Council of the Judiciary ed., 2011); C.H. van Rhee, Evolución del Derecho Procesal civil en Europa: Cómo el juez activo se convirtió en lo normal, 2 Revista Chilena de Derecho y Ciencia Política 11 (2011). 4 I initiated the exploration of that basis a few years ago: see Carlos Petit, Historia y teoría del proceso civil garantista, inStoria e diritto: Esperienze a confronto 325 (Bernardo Sordi ed., 2014). 5 See, e.g., Franco Cipriani, I provvedimenti presidenziale nell’interesse dei coniugi e della prole (1970); Franco Cipriani, Della separazione al divorzio (1970); Franco Cipriani, Matrimonio e processo (1990). 6 On the characteristics of Klein’s system according to Chiovenda, see Franco Cipriani, Giuseppe Chiovenda en Parma (de la “Procedura Civile” al “Diritto Processuale”) Mayo 1900–Diciembre 1902, in 43 Thémis: Revista de Derecho 117, 123 (2001) (translated by author): [T]he only natural limits of the judge’s power are the substantive demands of the parties; the Offizialmaxime [i.e., the principle of ex officio procedure] ought to replace the Parteidispositionsmaxime [protagonism of the parties in the trial], so that “the parties can discard substantive law, renounce their demands, or modify them, but cannot discard the reasons, the exceptions, or the means of proof,” and that “there is no right to request or allow remands; the judge grants them as he sees fit. There should be no unnecessary delays, because it is in the interest of the state to get rid of the claim directed against it as quickly as possible, and because the clogging of the causes that are remitted unnecessarily distracts it from its activity.” Between “guaranteeism” and “publicism,” the publication by Cipriani that had the greatest impact on Latin American literature is, I believe, his analysis of the old Austrian procedural code: Franco Cipriani, En el centenario del Reglamento de Klein (El proceso civil entre libertad y autoridad) (1995), inBatallas por la justicia civil 59 (Eugenia Ariano trans., 2003). 7 The adjective “civile” was dropped from the journal’s name in 1946. In recent years, the Processuale has added the sections “History and Culture of the Trial” and “Foreign and Comparative Procedural Law,” hoping to draw foreign contributions. It was either Franco Cipriani, or those critical of him, who encouraged the creation of the first section. 8 See Vittorio Denti & Michele Taruffo, La Rivista di Diritto Processuale Civile, 16 Quaderni fiorentini per la storia del pensiero giuridico moderno 631 (1987). 9 However, Chiovenda’s authority had been acknowledged a little earlier by Tomás Montejo (1856–1933), lawyer and professor of procedural law at the University of Madrid. In Latin America, the pioneer was a distinguished Argentinean colleague: see Abelardo Levaggi, Tomás Joffré, introductor de Giuseppe Chiovenda en el derecho argentine, 3 Revista Electrónica del Instituto de Investigaciones Ambrosio L. Gioja 98 (2004). 10 Manuel Cachón Cadenas, Historias de procesalistas, universidades y una guerra civil (1900–1950), at 45 (2012) (translated by author). On Casais Santaló and his translation of Principii, see id. at 271–88. 11 Guiseppe Chiovenda, La condanna nelle spese giudiziali (Juan A. de la Puente trans., 1928) (1901). 12 Josep Xirau, Preface to La condanna nelle spese giudiziali,supra note 11, at 5. 13 Cachón Cadenas, supra note 10, at 108ff. On Josep Xirau, see Manuel Cachón Cadenas,Josep Xirau, inDiccionario de catedráticos españoles de Derecho (Nov. 5, 2011), http://portal.uc3m.es/portal/page/portal/instituto_figuerola/programas/phu/diccionariodecatedraticos/lcatedraticos/xpalau. 14 SeeStudi di Diritto Processuale in onore di Giuseppe Chiovenda nel venticinquesimo anno del suo insegnamento (Antonio Castellari et al. eds., 1927). On the Spanish contributions, see Cachón Cadenas, supra note 10, at 69–72. In addition, see Manuel Cachón Cadenas, Francisco Beceña: Un procesalista de primera hora 159–65 (2017). 15 But see Cachón Cadenas, supra note 10, at 641, on the 1918 reading of Chiovenda by the Argentinean procedural law specialist Tomás Jofré (1868–1930). 16 On the 1855 Ley de Enjuiciamiento Civil, see Mónica Vásquez Alfaro, La ciencia útil: Una reconstrucción de las conciencias jurídicas procesales en Colombia y América Latina 27ff. (2015). The establishment of the Instituto Iberoamericano de Derecho Procesal (Montevideo, 1957), which was promoted by the Spanish exile Niceto Alcalá-Zamora (1906–1985), marked the hundredth anniversary of that decisive legislation. 17 There were new translations of Chiovenda in Spain (Guiseppe Chiovenda, Instituciones de derecho procesal civil (Gómez Orbaneja trans., 1936)) and Argentina (Guiseppe Chiovenda, Estudios de derecho procesal civil (Sentís Melendo trans., 1949)). Adolf Wach was translated in Argentina (Adolf Wach, Conferencias sobre la ordenanza procesal civil alemana (Ernesto Krotoschin trans., 1958)), while James Goldschmidt was published in Spain (James Goldschmidt, Derecho procesal civil (Prieto Castro trans., 1936)) and Argentina (James Goldschmidt, Derecho justicial material (Catalina Grossmann trans., 1959)). Santiago Sentís Melendo (1900–1979), another Spaniard who had fled Franco’s dictatorship, translated almost all of Calamandrei’s work during his long exile in Buenos Aires. In addition, Francesco Carnelutti, Metodología del Derecho (Angel Ossorio trans., 1940), was translated in Mexico. 18 The quote stated: “It is important to decide on fundamental reform, or else give up hope for serious progress.” It was extracted from Guiseppe Chiovenda, La riforma del procedimento civile 4 (1911) (translated by author). 19 Adolfo Alvarado Velloso, La garantía constitucional del proceso y el activismo judicial. ¿Qué es el garantismo procesal? 51 (2011) (translated by author). 20 Preliminary Introduction to the Code by Piero Calamandrei, quoted in Franco Cipriani, La ribellione degli avvocati al c.p.c. del 1942 e il silenzio del Consiglio nazionale forense, reprinted inFranco Cipriani, Ideologie e modelli del processo civile. Saggi 75 (1997) (translated by author). 21 The revision (in more than chronological terms) of the official history of the Codice di procedura—the fascist Code of Civil Procedure produced by bland experts who were more than technical advisers (Calamandrei, Carnelutti, Redenti, and Conforti), all of whom were followers of Chiovenda—is examined in Giovanni Tarello, L’opera di Giuseppe Chiovenda nel crepuscolo dello Stato liberale (1973), inDottrine del processo civile: Studi storici sulla formazione del diritto processuale civile 109 (1989). “Fascism was there,” notes Tarello. “The continuity in the personal, conceptual, and institutional uses of the schemes by the staff, [can be] interpreted as a sign that fascism began before the European war and lasted after liberation; a considerable phenomenon (though not commendable) of Italian institutional, social, and cultural history.” Id. at 113 (translated by author). Tarello thus debunks the comforting conception of the Codice di procedura understood by scholars such as Michele Taruffo as “the result of a compromise between the few ideas of the fascist reformers and the orientation substantially contrary to radical innovations prevailing in most of the forensic doctrine and profession, where the latter often ends up prevailing over the former.” SeeMichele Taruffo, La giustizia civile in Italia dal’700 a oggi, at 255 (1980) (translated by author). 22 Perhaps the most severe criticism of Cipriani’s theses was formulated by Luigi Montesano, Storie recenti su Mortara e Chivenda e sul romanesimo di Vittorio Scialoja concretato dai fascisti, 114 Il Foro Italiano 598 (1991); Luigi Montesano, Culto della personalità, “prodotti organici” e “papagalli lusingatori” di Chiovenda in un libro recente, 47 Rivista di Diritto Processuale 284 (1992). On the controversy in the newspapers, see Antonio Carioti, Calamandrei e quel Codice del Ventennio, Il Corriere della Sera (Milan), Jan. 26, 2006, at 41, with a reply by Michele Taruffo, Quel Codice non era fascista, Il Corriere della Sera (Milan), Apr. 9, 2006, at 31, and a rejoinder by Franco Cipriani, Calamandrei e il Codice di procedura civile—Interventi e repibliche, Il Corriere della Sera (Milan), Apr. 13, 2006, at 35. Sometime later, Cipriani gave another interview on the matter to Alessandra Benvenuto in the Corriere del Mezzogiorno (Naples) in July 8, 2007. 23 Juan Montero, Book Review, 1 Justicia Revista de Derecho Procesal 497 (1991) (translated by author). 24 Montero Aroca also reviewed Cipriani’s Il Codice di procedura civile: see Montero Aroca, Book Review, 4 Justicia Revista de Derecho Procesal 1012 (1992). 25 Manuel Cachón Cadenas, Una reseña tardía con algunos episodios tempranos (1999), inHistorias de procesalistas, universidades y una guerra civil (1900–1950), supra note 10, at 89, 90 (translated by author). 26 In addition to the work cited supra note 10, see Manuel Cachón Cadenas, Memoria de procesalistas (2017). See also César Hornero, Historias de procesalistas, 15 Cuadernos del Instituto Antonio de Nebrija 196, 201 (2012) (“Much remains to be done. For this, as a model, as a reference, we have the good work of Manuel Cachón: the Spanish Cipriani.” (translated by author)). 27 Ley de Enjuiciamiento Civil [L.E. Civ.] [Code of Civil Procedure] (2011) (Spain). 28 Juan Montero Aroca, Los principios políticos de la nueva Ley de Enjuiciamiento Civil (Los poderes del juez y la oralidad) 13 (2001) (translated by author). 29 The law, writes Montero, “has leaned toward orality as a determining principle . . . and has included in that principle the so-called consequential principles: concentration, immediacy, and publicity, and has done so reasonably”: Id. at 149. However, the 2000 Ley de Enjuiciamiento Civil was not devoid of “authoritarian” touches (“publicist”) introduced throughout the parliamentary process, such as the abovementioned principle of good faith (Id. at 106), or the powers of the judge regarding evidence (Id. at 121). See also Manuel Cachón Cadenas, La justicia civil española: luces y sombras en materia de eficiencia y garantías procesales (2011) (unpublished manuscript) (on file with author). 30 For example, as guarantor of the principle of good faith (see L.E. Civ. art. 247.3) with sanctioning power, see Manuel Cachón Cadenas,La buena fe en el proceso civil, inEstudios de derecho procesal 91 (2017). On the role of the judge in relation to procedural requirements (L.E. Civ. art. 461.1), see Montero Aroca, supra note 28, at 97. 31 Juan Montero Aroca, I principi politici del nuovo processo civile spagnolo (2002). 32 Proceso civil e ideología: Un prefacio, una sentencia, dos cartas y quince ensayos (Juan Montero Aroca ed., 2006). 33 Id.(2d ed. 2011). The 2011 edition contains important guaranteeist manifestos and an obituary of Cipriani by Montero, presented at a meeting held in Lima, Peru (see Juan Montero, Franco Cipriani, inProceso civil e ideología: Un prefacio, una sentencia, dos cartas y quince ensayos, supra, at 455). Montero recalls his first encounter with Cipriani in 1991—making Montero a precocious subject of the Storie di processualisti—as well as other exciting details. 34 On the Derecho Procesal Garantista (“Guaranteeist Procedural Law”) meetings (I, 1999; XV, 2018), see Reseña Histórica: Memoria de las Diversas Ediciones del Congreso, Facultad de Derecho: UNICEN, http://congresoprocesal.azul.der.unicen.edu.ar/resena-historica-1. (last visited Dec. 30, 2018) See also Congreso Nacional de Derecho Procesal Garantista, Facultad de Derecho: Universidad Nacional del Centro de la Provincia de Buenos Aires, www.der.unicen.edu.ar/congresoprocesal/programaActual.php (last visited Dec. 30, 2018). 35 José Carlos Barbosa Moreira, Evoluzione della scienza processuale latino-americana in mezzo secolo, 53 Rivista di Diritto Processuale 26 (1998). See recentlyVásquez Alfaro, supra note 16, at 117. 36 See Fernando Gama da Miranda Neto, Notas sobre a influência do direito material sobre a técnica procesual no contencioso judicial administrative, 4 Revista Eletrõnica de Direito Procesual 121, 133 (2009) (translated by author). 37 SeeVásquez Alfaro, supra note 16, at 122. However, the strong opposition of the legal classes reduced this code to a fleeting attempt (see L. 26/24, noviembre 5, 1924, Diario Oficial [D.O.] (Colom.), suspending L. 103/23, diciembre 5, 1923, D.O., also known as the Código Arbeláez (“Arbeláez Code”)). 38 The Revista de Derecho Procesal Argentina, published since 1943, stands out in this regard. 39 Hugo Alsina, Tratado teórico-práctico de derecho procesal civil y comercial (1941–1943). 40 Eduardo Couture, Fundamentos del derecho procesal civil (1942). 41 Santiago Sentís Melendo, Couture y su obra procesal, 16 Derecho PUCP Revista de la Facultad de Derecho 43, 45–48 (1957) (with references). 42 These are from his Draft Civil Trial Code (1945), reproduced verbatim in the preamble of the Código de Processo Civil [C.P.C.] [Code of Civil Procedure] 1973 (Braz.) (see recital no. 16) (translated by author). 43 Constituição Federal [C.F.] [Constitution] pmbl. (Braz.); Constitución Politíca de Colombia [C.P.] pmbl. (Colom.). 44 C.F. arts. 5.34, 5.52; C.P. art. 29. 45 C.F. art. 5.35. 46 C.P. art. 31. 47 C.F. art. 5.54. 48 Id. art. 5.55; C.P. art. 29 in fine. 49 C.F. art. 5.59; C.P. art. 228. 50 C.P. art. 229. 51 C.F. art. 5.73. 52 See American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143. Article 8 of the Convention establishes the right to be heard by an independent tribunal and within a reasonable time. Article 25 recognizes the right to the judicial protection of fundamental rights. Both of those precepts would lead to the rewriting of many procedural codes. The Convention has reached constitutional value in Colombia by L. 2/2001, diciembre 27, 2001, Diario Oficial [D.O.] (constitutional amendment), and in Brazil, by Emenda Constitucional No. 45, de 30 de Decembro de 2004, Diário Oficial da União [D.O.U.] de 31.12.1994. See Eduardo Oteiza, América Latina: Cultura y proceso civil, inProceso judicial y cultura: Una mirada global 199 (Mónica Bustamante Rúa ed., 2013). 53 See the preamble (recital no. 5) of the Código de Processo Civil [C.P.C.] [Code of Civil Procedure] 1973 (Braz.) (translated by author). 54 Instituto Iberoamericano de Derecho Procesal Secretaría General, El Codigo Procesal Civil Modelo para Iberoamerica (1988), www.iibdp.org/images/codigos_modelo/IIDP_Codigo_Procesal_Civil_Modelo_Iberoamerica.pdf [hereinafter Model Code of Civil Procedure 1988]. 55 A printed edition of the Model Code can be found in Un “Codice Tipo” di Procedura Civile per l’America Latina: Atti del Congresso Internazionale, Roma, 26–28 settembre 1988, at 515 (Sandro Schipani & Romano Vaccarella eds., 1990). 56 Model Code of Civil Procedure 1988, art. 1. 57 Id. (translated by author): The initiation of the trial is the responsibility of the interested parties; the court will do it ex officio only when the law expressly establishes it. The parties may dispose of their rights in the trial, except those that cannot be disposed of, and may terminate them unilaterally or bilaterally in accordance with the provisions of this Code. Among the judicial attributes of article 33 are the following: “rejecting the claim in limine, when it is manifestly unmeritorious, when it lacks the formal conditions required by law, or when a claim is made that is particularly subject to expiration and has expired” (subparagraph 1); “order the necessary diligences to clarify the truth of the facts in dispute, respecting the right of defense of the parties” (subparagraph 4); and “order at any time the presence of witnesses, experts and parties, to request the explanations that he deems necessary to the object of the lawsuit” (subparagraph 5). On the violent contrast between the quality of the doctrine and the persistent vices of justice, settled with the “socialization” of the civil trial and the protagonist role of the judge (“especially in terms of evidence instruction”), see the Brazilian publicist Moreira, supra note 35, at 30. 58 See Instituto Panamericano de Derecho Procesal, Proyecto de Código procesal general modelo para la justicia no penal de Latinoamérica (2016), www.academiadederecho.org/upload/Proyecto_de_Codigo_Procesal_General.pdf [hereinafter Model Code of Civil Procedure 2016], with notes by Adolfo Alvarado Velloso that offer a normative correlation and a systemic explanation of all legislated institutions. The drafters of the second model code are two Argentinean lawyers and proceduralists: Alvarado (general part of the code) and Omar Abel Benabentos (special part). The 28th Pan-American Meeting on Procedural Law (Sept. 6–7, 2017), was recently held to discuss the project. 59 Id. art. 2(1) (“Concept of Jurisdictional Activity”). 60 A note by Alvarado states on this point that “the initiation of a trial by the judge’s ex officio activity is completely ruled out.” See id. at 5 (discussing article 2) (translated by author). 61 Id. art. 1(6) (“Right to Effective Judicial Protection”). 62 See id. art. 62(4) (“Resolution Duties of the Judges”): Analyze the evidence material legally offered and produced by the parties that is in the file and resolve the case with strict adherence to the rules that govern the burden of proof. In case of doubt due to a lack of evidence that is convincing with respect to a controversial fact relevant to the adoption of a decision, he must apply the constitutional principle that orders absolving anyone who has no burden to prove (in dubio, pro reo). In turn, the rule on the decision-making powers of the court establishes that “all other informal evidentiary activity of the judge is null and void, as is the judicial resolution based on that evidence” (id. art. 72 in fine, “Decision-Making Powers of the Judge”). 63 See, for a general approach, Enrique Álvarez Cora, La arquitectura de la justicia burguesa: Una introducción al enjuiciamiento civil en el siglo XIX (2002). 64 Trade justice derives from the summary trial of canon law, as shown by Víctor Fairén Guillén, Lo “sumario” y lo “plenario” en los procesos civiles y mercantiles españoles: Pasado y presente (2006). In Spain, commercial lawsuits were regulated by the Code of Commerce (1829) and its own procedural law (1831), but merchant courts were abolished in 1868. I do not know what its destiny has been in the young Latin American republics, where the 1829 Code enjoyed considerable dissemination: see Ezequiel Abásolo, El código de comercio español de 1829 en los debates y las prácticas jurídicas del extremo sur de América, 78–79 Anuario de Historia del Derecho Español 447 (2008); 79 Anuario de Historia del Derecho Español 460 (2008–2009). 65 SeeLópez Medinasupra note 3, at 27. 66 De justicia de jueces a justicia de leyes: hacia la España de 1870 (Marta Lorente ed., 2007). 67 These are the so-called measures to better provide, which, in the words of the 1855 legislature (Ley de Enjuiciamiento Civil [L.E. Civ.] [Code of Civil Procedure] art. 48 (1855) (translated by author), were regulated as follows: The judges and courts may, to better reach a decision, 1) decree that any document they deem relevant to clarify the litigants’ right be brought before them; 2) demand judicial confession to any of the litigants, on facts that they consider of relevance for the matter and that have not been proven; 3) decree the undertaking of any examination or assessment that they deem necessary; 4) display any judicial resolutions related to the lawsuit. In the second Ley de Enjuicimiento Civil, 1881, the so-called measures to better provide were contemplated under articles 340–342, and continue to be regulated as such in the current law as “final proceedings” (arts. 434–436). But see also Codice di procedura civile [C.p.c.] art. 269 (1865) (It.) (translated by author): When the judicial authority does not find sufficient evidence in the report for the dismissal of the case, it can order the experts to give further oral clarifications at the hearing, or order a new appraisal to be performed by one or more appointed experts. The new experts can first request the explanations that they deem convenient to allow a certain “activity” in favor of the judge that other precepts maintain in this evidentiary matter (see C.p.c. art. 271, ex officio judicial inspection of the place or matter of dispute; on the liberal judge regarding witness evidence, see C.p.c. art. 243). Cipriani does not touch upon the matter: see Franco Cipriani, Giuseppe Pisanelli e il processo civile, inGiuseppe Pisanelli: Scienza del processo, cultura della legge e avvocatura tra periferia e Nazione 69 (Cristina Vano ed., 2005). 68 See Cipriani, supra note 6. 69 Id. at 63. 70 Juan Montero Aroca, El Derecho procesal en el siglo XX, at 75 (2000) (translated by author). The work has its remote origins in a seminar that was taught at the Universidad Nacional Autónoma de México (National Autonomous University of Mexico). 71 Id. at 74. 72 See, e.g., Jairo Parra Quijano, Racionalidad e ideología de las pruebas de oficio 44 (2004) (on Klein and the Zivilprozessordnung); see also id. at 54, 159 (on the relazione of the Italian Code, which was also published as an annex). On case management by common law judges, see López Medina,supra note 3, at 56. 73 The Colombian Code (L. 1564/12, julio 12, 2012, Diario Oficial [D.O.]) has been in force since January 1, 2016, under Agreement No. PSAA15-10392, Oct. 1, 2015, which was issued by the Administrative Chamber of the Superior Council of the Judiciary, once the training phase for judges and the technological adaptation of the courtrooms was completed. The Brazilian Code (Lei No. 13.105, de Março de 16 de 2015) entered into force on March 18, 2016. 74 See, e.g., Germán Ángel Benedetti, La verdad jurídica objetiva, ¿es la única respuesta correcta? Una visión desde el garantismo procesal, 2 Garantismo Procesal 56 (2011); William Esteban Grisales Cardona, La prueba en un Esquema Garantista, 3 Garantismo Procesal 99 (2012); José Mauricio Espinosa Gómez, ¿La inspección judicial en materia civil, como prueba extraprocesal es violatoria de derechos y garantías de las personas?, 5 Garantismo Procesal 120 (2012). 75 Pronounced in Congress by Senator Horacio Serpa (1987), reproduced inVásquez Alfaro, supra note 16, at 171 (translated by author). It is enough to consider the illegal occupation of land by paramilitary forces and the consequent vicious possession of certain landowners: see generally Andrés Botero Bernal, La utilidad o inutilidad de la posesión viciosa para la prescripción adquisitiva extraordinaria en Colombia, 17 Revista Jurídica Universidad Autónoma de Madrid 49 (2008). 76 Vásquez Alfaro,supra note 16. 77 Constitución Política de Colombia [C.P.]. 78 See Corte Constitucional [C.C.] [Constitutional Court], mayo 12, 1992, No. ST-006, quoted inVásquez Alfaro, supra note 16, at 185 (translated by author). Among the abundant literature on the matter, see Liliana Carrera Silva, La acción de tutela en Colombia, 5 Revista Ius 72 (2011). 79 “Those are duties of the person and citizen: . . . 7. To collaborate in the proper functioning of the administration of justice.” See Mabel Londoño Jaramillo, Deberes y derechos procesales en el Estado social de derecho, 11 Opinión jurídica 69, (2007) (translated by author). 80 SeeInstituto Colombiano de Derecho Procesal, www.icdp.org.co (last visited Mar. 12, 2015). The Institute was established in 1969—under the impetus and direction of Hernando Devis Echandía and Hernando Morales Molina, who are largely responsible for the Code of Civil Process of 1970 (Decreto No. 1400, agosto 6, 1970). The new code was developed by the Institute starting in 2003, with Jairo Parra—a distinguished publicist jurist—as the Institute’s President. 81 The judge must “use the powers granted by this Code in matters of ex officio evidence to verify the facts alleged by the parties.” C.P. art. 42.4 (translated by author). 82 See Corte Constitucional [C.C.] [Constitutional Court], febrero 24, 2016, SCC-086/2016, www.corteconstitucional.gov.co/relatoria/2016/C-086-16.htm (last visited Dec. 30, 2018) (translated by author), where Judge Jorge Iván Palacio stated: [T]he challenged norm cannot be interpreted in isolation of the purposes and principles that guide the General Code of the Trial and that therefore have binding force. This means that the judge, as the director of the trial, must be vigilant to fulfill his mission within the framework of a social and democratic state based on the rule of law, either by resorting to his unofficial attributions in the ordaining and administering of evidence, or to make a reasonable distribution of the burden of proof according to the position in which the parties are in each case. 83 Alvarado Velloso, supra note 19, at 104 (translated by author). A new code of criminal procedure (Código de Procedimiento Penal) has been in force in Colombia since 2004 (L. 906/04, agosto 31, 2004, Diario Oficial [D.O.]), which has incorporated the common law adversarial system. However, the reform of the trial, especially the criminal trial, has been one of the measures imposed on Colombia within the framework of the new policies promoted by the financial institutions of global governance (i.e., the World Bank, the International Monetary Fund, and the World Trade Organization): seeCésar Rodríguez Garavito et al., ¿Justicia para todos? Sistema judicial, derechos sociales y democracia en Colombia (2006). 84 See Luís Correia de Mendonça, 80 anos de autoritarismo: uma leitura política do processo civil portugués, inProceso civil e ideología 381 (Juan Montero Aroca ed., 2006). See alsoLuís Correia de Mendonça, Direito processual civil: As orígens em José Alberto dos Reis (2002). The distinguished magistrate Mendonça has also offered the most complete exposition of the thesis and work of Cipriani: see Luís Correia de Mendonça, O Pensamento de Franco Cipriani sobre a Justiça Civil, 2 Revista do Centro de Estudos Judiciários 65 (2005). Recently, the translation and publication in Brazil of Proceso civil e ideología was announced: see Jefferson Carús Guedes, Direito processual de grupos sociais atual: Entre o ativismo judicial e o garantismo procesual, 6 Revista brasileira de políticas públicas [Rbpp] 115, 116 (2016). 85 See Leonardo Greco, Publicismo e privatismo no processo civil, 33 RdP 29 (2008). Leonardo Greco was Alfredo Buzaid’s adviser when the latter, at the time the Minister of Justice, promoted the Code of Procedure in 1973. 86 It seems the influence of Italy persists. A few years ago, in 2014, the conference I Colóquio Brasil–Itália de Direito Processual Civil was held in São Paulo. It was coordinated by Camilo Zufelato, Giovanni Bonato, Heitor Vitor Mendonça Sica, and Lia Carolina Batista Cintra. 87 By Ato No. 379, Sept. 30, 2009, a commission of experts was set up to prepare a preliminary draft, consisting of Adroaldo Furtado Fabricio, Bruno Dantas, Benedito Cerezzo Pereira Filho, Elpídio Donizetti, Teresa Arruda Alvim Wambier, Humberto Theodoro Júnior, Paulo Cezar Pinheiro Carneiro, Luiz Fux, Jansen Fialho de Almeida, José Miguel Garcia Medina, José Roberto dos Santos Bedaque, and Marcus Vinicius Furtado Coelho. 88 It was those ascribed to the “guaranteeist-privatistic” school who spoke of “procedural gattopardismo,” fearing that the new code would reproduce the content of the 1973 code: Glauco Gumerato Ramos, Actual debate en el procesalismo brasileño: ¿garantismo o activismo?, 221 RdP 381 (2013). 89 See Rodrigo Daniel Silva, O novo CPC não é uma revisão do Código de 1973: É muito diferente, Consultor Jurídico (July 2, 2014), www.conjur.com.br/2015-mar-17/avancos-retrocessos-cpc-publicado-diario-oficial) (interview with Fredie Souza Didier Jr.) (translated by author). 90 José W. Bezerra da Costa Neto, O novo Código de Processo Civil, 249 RdP 81 (2015) (quoting Paulo Henrique dos Santos Lucon: see Novo CPC é publicado e, para advogados, traz segurança jurídica, Consultor Jurídico (Mar. 17, 2015), www.conjur.com.br/2015-mar-17/avancos-retrocessos-cpc-publicado-diario-oficial) (translated by author). 91 Constituição Federal [C.F.] [Constitution] art. 8 (Braz.) (translated by author). 92 This responds to the constitutional norm requiring that judicial decisions be motivated: see Id. art. 93xi. 93 Id. art. 370. 94 Id. arts. 190–191. 95 President Rousseff’s veto of the long article 333 of the C.P.C., which allowed for the transformation of the individual trial into a collective trial, expresses such guaranteeist balance. See José Rogério Cruz e Tucci, Contra o processo autóritario, 242 RdP 49 (2015). 96 José de Celso Mello Filho, President of the Supreme Federal Court (1997–1999), quoted in Sílvio Dagoberto Orsatto, The Role of the Judiciary in the Constitutional State Under the Phenomenon of Judicialization of Public Policies in Brazil, 5 Rbpp 239, 242 (2015). 97 Gumerato Ramos, supra note 88. 98 SeeJefferson Carús Guedes, Igualdade e desigualdade no processo civil: O processo civil como técnica compensatória de desigualdades sociais (Nov. 19, 2008) (unpublished Ph.D. dissertation, Pontifícia Universidade Católica de São Paulo), https://tede2.pucsp.br/handle/handle/8383 (translated by author). 99 SeeMiguel A. Ruiz Albert, El lanzamiento de vivienda como proceso de ejecución con todas las garantías 2012) (unpublished Ph.D. dissertation, Universidad de Huelva), http://rabida.uhu.es/dspace/handle/10272/6594. Author notes Professor of Legal History and Comparative Law, University of Huelva, Spain. © The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Published: Dec 31, 2018

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