Consolidação e codificação em direito civil: bases conceituais e experiências sulamericanas

Abstract

This article seeks to understand the conceptual basis of the terms consolidation and codification for, despite the broad and common use of the two legislative techniques, there is no doctrinal consensus with respect to their characteristics and the scope of their uses. The similarities and the differences in treatment of terms were presented, seeking to dialogue, especially with the perceptions of the Italian jurist Mario Viora in his classic work on the subject. Following the aforementioned account, an attempt was made to identify the particularities in theoretical constructs and experiences of two South American countries: Brazil and Chile. For that, the works of Augusto Teixeira de Freitas and Andrés Bello were studied, verifying that the design of the consolidator technique applied to civil law was endowed with its own characteristics. In this sense, a comparative exercise to understand the fundamentals of the peculiarities and to decompose the conceptual legal problem was performed. Therefore, it was found that for both lawyers the consolidator technique was designed as a preparatory exercise for the making of a coding away from the conception hitherto existing within the European legal science. Despite differences in the achievement of the consolidation and coding tasks, one of the common concerns of Freitas and Bello appears to have been the preservation of a legal tradition, one that does not abruptly break with the previous existing regulatory body.