DUAS TRADIÇÕES JURÍDICAS, UMA SÓ CIÊNCIA: AS TEORIAS POSITIVISTAS COMO ELO ENTRE O COMMON LAW E O CIVIL LAW

Abstract

The common law and civil law have different origins and have long debated law from the same perspective: positivism as a scientific link between the two traditions. In Brazil, affiliated with the civil law tradition, there has long been an appreciation for thesis of legal philosophers of English and American law to explain and apply their lessons. To better understand these two normative families, the present essay seeks to deepen the research on the historical content of law as a science since its positivist origins both in Continental Europe and in England. The objective is to understand how the dichotomy between French exegetics and professionalizing nature, with its codification process influenced by revolutionary Enlightenment ideas and Germanic hermeneutics, with its pretension of scientificity producing several schools of jurisprudence since the fall of the Holy Roman Empire- Germanic, unleashed the positivist theories that dominate academic debates to the present day. On the other hand, the historical origin of the common law will be analyzed and how it developed in parallel with the law of continental Europe also from the evolution of an English positivism to influence thinkers in Continental Europe, demonstrating that although in different traditions the law has been studied under the same theoretical bases sown by positivism, justifying the approximation between the two major normative traditions and the use of institutes from other traditions between the legal systems as occurs eg by codification in common law countries as well as the use of precedents in civil countries law.