Dissertations
Ph.d, Master and J.D. dissertations written within the group
Desencontro marcado? Expropriation, administrative efficiency and propertary absolutism in Brazil (1826-1930)
Arthur Barrêtto de Almeida Costa - Master
Historiography thinks of the nineteenth century as a time when State prerogatives are exacerbated but, equally, of absolutization of property. Through the analysis of expropriation, this dissertation put these two conclusions into perspective, and try to identify how they can be reconciled. To tackle this objective, the major national legislative interventions on the subject were scrutinized, coupled with the respective parliamentary debates, public law books, discussions in the daily press and 466 court rulings and 42 legal opinions taken from 12 legal journals. It was possible to identify the existence of three models of expropriation over the period which coexisted. The first derives from the 1826 act, is based on the distinction between public utility and public necessity and is projected to be hard to execute. The second arises with the 1845 act and institutes the expropriation jury; it is a little easier to carry out, but still generates high compensations. From the 1850s on, with the economic development of the country, a greater presence of the State was demanded, and a new model was created, based on a special decree in 1855. It was successively employed in small urban reforms in Rio de Janeiro and in the construction of railroads. This progressive flexibilization was facilitated by two parliamentary strategies: the creation of legislative regimes of exception, with faster kinds of expropriation; and the second was the presentation of sketchy projects, of faster discussion, which diminished the opportunities for filibuster for the opposition. In 1904, with the major urban reform in Rio de Janeiro in view, the complex provisions then in force were consolidated and simplified. Parallel to this legislative path, an attempt was made in late 19th century to use expropriation for a smooth abolition of slavery, but the proponents of this solution were unsuccessful. Hence the first conclusion: the development of the institute was primarily related to the needs of urban reforms and, to a lesser extent, to the construction of railroads. The analysis of legal journals led to additional results. The second conclusion, then, is the existence of a disjunction between a doctrinal and judicial discourse that demonizes expropriation, despite considering it necessary, and, on the other hand, a forensic practice that shows landowners profiting from expropriations through negotiation with the State. The third is that expropriations cannot be viewed solely as a conflict between the State and private individuals, since most of them are promoted by private companies authorized by the public authorities. The fourth conclusion is that in the twentieth century, laws are made with the objective of accelerating state intervention, but judges oppose this objective by expanding the opportunities for discussion of various issues within the process. The fifth is that Brazilian jurists constantly refer to foreign authors, especially French ones, but when "translating" their ideas into Brazilian law, they have built a system that is progressively more favorable to the State. In general terms, it is possible to say that, between 1826 and 1930, the Brazilian legal system was providing the State with increasingly efficient means to intervene in property; but this intervention could in certain cases violate the right to property, or, in very specific ones, serve the hidden interests of a minority of well-connected owners.
Against the "armazens do gozo vendido a retalho": a history of the criminalization of brothels in Brazil (1890 - 1920)
Raquel Khouri dos Santos - Bachelor
The present work sought to comprehend the insertion of the maintenance of a brothel as an offense in Brazilian legal system. The starting point of the research was the 1890 Penal Code, in which procuring is characterized as a crime for the first time (articles 277 and 278). From the beginning, we discovered that the maintenance of a “casa de tolerância” (“maison de tolérance”) (the current name for brothels at the time) was not explicitly forbidden in the original text of the Penal Code. Instead, the prohibition took effect in a posterior bill (bill number 2992/1915), known as Mello Franco’s Bill. Therefore, to reach this study objective, we consulted the doctrine concerning the 1890 Penal Code, before and after 1915; the legal literature on prostitution of the time; the parliamentary debates leading to promulgation to the Mello Franco’s Bill; and newspaper articles of the time about brothels and sentences in legal magazines. From this research, we conclude that although the doctrine typified the prohibition of the maintenance of a brothel under the crime of procuring (article 278 of the 1890 Penal Code), it was not until 1915 that it became expressly forbidden. The legal environment reproved the brothels, seen as immoral and inefficient in reducing public scandal and dissemination of sexual diseases, as well as places of exploitation of sex workers. Adding to this negative view, the regulationist approach – which proposed the casas de tolerância (maison de tolérance) as the model for state intervention on prostitution – had been under severe international criticism (especially the French model). Ultimately, an international meeting was held in Paris in 1902, where the signatories, including Brazil, agreed to promote measures to fight women traffic for prostitution. Based on this convention, Mello Franco proposed the alteration in the articles 277 and 278 of the Penal Code, to make the “the maintenance and exploitation of a casa de tolerância (maison de tolérance)” forbidden. In summary, the criminalization of brothels, at the time, on the background of public opinion (including jurists) oscillated between the reprobation of “scandal” and selective tolerance to these spaces.
“Abusos da liberdade de communicar o pensamento”(Abuses on the Liberty to Communicate the Thought)? A History of the Crime of Apology of Crime or of Criminal in Brazil (1830- 1940)
Marina da Costa Araújo - J.D.
This study intends to investigate the historical-legal trajectory of the legislative models of "apology" of crime in Brazil, the multiplicity of criminal offences existing in Brazilian law as political crimes, which specialized or merged successively until the appearance of crime of apology or of criminal in the 1940 Penal Code. The provocations contained in the criminal codes of 1830 and 1890 were species of limiters of the freedom to communicate the thoughts and were intended to punish the instigations to determined political crimes, by the interest of protecting the State. The existence of these crimes was also observed in drafts and penal codes of other countries, with emphasis on the Edward Livingston’s 1824 penal code draft, the German penal code of 1871, the Argentinian of 1921 and the Italian of 1930, in which we could notice important characteristics that required a comparative analysis with Brazilian codes and laws. The situation of constant political instability in Brazil, and the outbreak of several revolts in the passage from the Empire to the Republic, opened space for crimes that are increasingly broad and susceptible to judicial arbitrary decisions. From the Estado Novo, we observe the migration of political crimes, formerly in the penal code, to special laws, in order to strengthen the political and social order through a more forceful criminal repression against acts considered subversive by the State. The 1940 Criminal Code is then promulgated and gives rise to the crime of Apology of Crime or of Criminal, amplifying the spectrum of the "abuses of the freedom to communicate the thought". The new crime already appears with the characteristics of a residual offence and a subsidiary application to the instigations of the special laws. These aspects of crime can be observed in practice through a meager jurisprudence that has demonstrated an innocuity until its resurgence in conflict with the 1988 Constitution, for the reasons of its existence, for its political nature, in a broad sense, of self-protection of the order, for the wrong way in which it has been applied and by violating the right to communicate the thoughts and freedom of speech.
Do the Nobility lost its Majesty? Law of nobility in the legal-political culture of Imperial Brazil
Álvaro Monteiro Mariz Fonseca - J.D.
This paper aims to clarify the legal-political architecture of "titles," "honors," "military orders," "distinctions," and "pecuniary mercies," under a so-called "nobility right" in nineteenth-century Brazilian legal-political culture. In this sense, it seeks to understand how Brazilian law established these honorific rewards, and whether they were bound by any kind of legal privilege. The main historical sources are the Political Constitution of the Empire of Brazil (1824), the doctrinal comments to the constitutional text, as well as the Proceedings of the Brazilian Parliament. The interpretation of these sources makes it possible to conclude that, in fact, the imperial constitutional system repudiated the existence of privileges to nobles, without however being able to completely prevent any remnants of Ancien Régime rights from being resisted for some time in the ordinary legislation of the Empire.
Aléxia Alvim Machado Faria - Master
If attributing a meaning to a name implies bringing connotations and circumstances that are only dully comprehensible when analysed historically, the choice of a name for a particularly reprehensible crime carries a sort of symbology that transcends mere occasionality or influence from other jurisdictions. And when the term is “corruption” – a multisignificant word that until today comprises many other conducts besides the trade of functional acts –, to figure “when” and “why” it starts to describe specific forms of crime is to identify the birth of a symbolism that remains strong up to the present time. This dissertation makes use of periodicals, criminal law books, legislation and parliamentary annals of Imperial Brazil, as well as foreign laws comparable to the Brazilian experience, to analyse the process by which the crimes nowadays described as “passive corruption” and “active corruption” – at the time, “peita” and “suborno” – are referred to as forms of “corrupção”, until they became the main designation of these felonies in the criminal-legal sphere. Concurrently, it examines the meanings attributed to “corruption” until and during the Brazilian Empire, reckoning a change in the most relevant historical concepts. The results point towards the modification of the very meaning of “public good” and “public administration”, to the emergence of “crimes of responsibility” in Brazil, and to the specific choice for two behaviors considered especially reprehensible in nineteenth-century Brazil: favour exchange mainly motivated by political sponsorship – here called “patronage” – and the burdensome vice of “selling acts in the public office” for the mere purpose of gaining more advantage – often expressed at the time as “venality”. They also identify that three groups are treated otherwise in “peita” and “suborno”. Both crimes have different penalties for the public official in a broad sense, for the judge and for the minister of state. The emergence of the first group as “outlaws” seems natural since it is linked to the very special reproof of the crimes committed against the Public Administration, which is born and expands throughout the Brazilian Empire. Why magistrates received much more severe penalties than other officials and ministers have more indulgent penalties and even different descriptions of both crimes, the scrutiny of the legal and political context of the time was paramount to indicate.
The most beautiful prerrogative of the crown: royal pardon in Brazilian legal culture (1823-1924)
Arthur Barrêtto de Almeida Costa - J.D.
This work aims to unveil how Brazilian legal culture dealt with pardon between the years of 1823 and 1924. To do so, we use as sources mostly constitutional and criminal law books; requests to the State Council; parliamentary records; and newspapers. We identified three main arguments used to justify pardon: its power to conciliate justice of law with the particularities of each case; the possibility to recognize the convict’s correction; and correction of judicial errors. Some jurists only agreed with the second one. In late 19th and early 20th centuries, the creation of parole, sursis and criminal revision wiped out the second and third justifications, but doctrine still supported pardon’s existence. We also noticed that, despite being called an appellation, the institute had the nature of a petition. Pardon was part of the emperor’s prerogatives, and therefore was understood as a way of controlling the legislative, for suspending law’s efficacy, as well as the judiciary branch, for being an amendment of sentences. At the State Council level, we could determine that the majority of petitionaries were slaves or militaries; much of penalties were the harshest ones, especially in late 19th century, even though lighter sentences were also pardoned; the council focused mostly in reviewing procedural irregularities, especially regarding the 10th June 1835 act; and the emperor almost always accepted the council’s opinion. We also noticed a relevant debate at the newspapers about pardon, which, even if not tackling the very existence of pardon, criticized some specific cases. We could highlight: conditional pardoning for service in Paraguay War; some pardons during regency; and the systematic commutation policy of 1870’s and 1880’s, which lead to the abolition of death penalty. Through pardon, some important issues of 19th century law were put into debate, such as jury, whose adaptation difficulties were softened with commutations. In general, it was possible to conclude that, for the lapse of time studied, pardon became an institute increasingly from criminal over constitutional law, but maintaining a double nature; was used to mend system’s flaws, as a “safey valve”; and this use was not ill-regarded due to emperor’s moderative function.
João Paulo Mansur - Master
The Brazilian novelist José Lins do Rego Cavalcanti (1901-1957) was born in the farmhouse (“casa-grande”) of a northeastern sugar cane farm. His maternal grandfather, who was owner of six sugar cane farms (“engenhos”), descended from a family trunk that had many properties in the region around the headquarters of the municipality of Pilar-PB, and, overtaking the border with Pernambuco, in the region of Timbaúba and Itambé. His relatives, in addition to being socioeconomically powerful, they dominated the politics of those municipalities during the first years of the twentieth century, as well as they had obtained positions of state deputy and judge in Parahyba do Norte and Recife. When, in the 1930s, José Lins do Rego began his career as a novelist, he named his first five books as "Sugar cane cycle", a series of works that, in an autobiographical and memorialistic tone, rescued the world of sugar cane farms in which he had lived his childhood. The "‘Cangaço’, mysticism and drought cycle" is another set of works written by the author that portrays the Brazilian northeast, however, entering the dry hinterlands. This dissertation proposes to use the literature of José Lins do Rego, mainly in relation to these two "cycles", to study, in the Brazilian First Republic, the relationship between the private power of sugar cane farmers and the law made by the State. Since the Empire, Brazil has incorporated the modern project of legal absolutism. The laws made by the State should be, henceforth, the categorical guide in regulating social life and in resolving conflicts. This implied transformations in the way the farmers managed their bossy leadership ("mandonismo") and the private order in their lands. It also put sugar cane farmers in electoral disputes, sometimes fraudulent and virulent, that aimed at the political control of the State institutions - the police chief, the jury, the tax inspector, etc. Here is the "coronelismo". As a traditionalist, the novelist missed the world of sugar cane farms with their archaic mills, which has crumbled with the industrialization and urbanization in the early twentieth century. The image of the sugar cane farmer, arbitrary, but, in his view, capable to support people in need and of building a private order, has disappeared in front of the impersonal and individualist modern law promoted by the State. But, in a literature filled with internal tensions, Rego was also able to denounce the violence of the political disputes, that, sometimes, led to the involvement between landowners and itinerant bandits, who were named "cangaceiros".