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.