Tullio Ascarelli and foundaments of comparative law: reports of a timeless contribution

Abstract

This article discusses the distinctive patterns of Tullio Ascarelli ‘s work in the field of comparative law and his contribution to the theoretical foundations of comparison of legal systems. It analyzes theoretical premises elaborated by the Italian jurist between the time of his exile in Brazil, during the 1940s, and Post-Second War, a period which coincides with the critical development of the codification of private law in Italy. It departs from a review of the specialized literature discussing the influence of Ascarelli’s thought on the Italian-Brazilian legal culture, as well as the nuances of the development of the Italian comparative school. One should contend that this movement has been associated to a doctrinal resistance to the legal-formalist approaches and dogmatism and the theoretical claims supporting diversity and comparison of systems such as keys for comprehension of the major shifts in private law norm-setting. In this sense, the article will introduce readers to Ascarelli’s classic text entitled “The Role of Comparative Law and Our Private Law System”. This text is useful to highlight the distinct roles of legal comparison and the dialogue between legal systems, all of them resulting from the genuine imaginary path unfolded by a “legal traveler”.