Ius Commune – Grupo Interinstitucional em História da Cultura Jurídica

Design and Experiences of Laicity in the Brazilian Constitutional Order of 1988: the Historical Course and the Role of Christian Theology (2020/2021)

Coordinator: Professor Caetano Dias Corrêa

The research will analyze the historical trajectory of the concept of laicity from its conformation in the Brazilian constitutional order of 1988. In this sense, it will seek to verify the outlines of this concept from its conception to the present day, emphasizing the historical flows in the effort of secularization that took place from it and its interfaces with Christian theology. The research problem is formulated in the following question: how did the historical path of secularity as a conforming concept of political organization and legal order, in a necessary interface with Christian theology, which also influenced the political-legal organization throughout history, acted as a vector of the institutional design of the current Brazilian secular state? For this work will be used the method of deductive approach, and as a research technique for obtaining data the bibliographic research, mainly works of the areas of universal history, history of law, history of legal thought, theory of law, constitutional law, sociology and theology. It will be historiographical research, which also requires the application of documentary analysis as a research technique, such as the investigation of legislative sources, parliamentary debates and period publications (newspapers and magazines). It will have a qualitative character in terms of the analysis and interpretation of the results, in order to assess overall the conclusions provided by the research. With this multidisciplinary analysis, which mainly encompasses politics, law, sociology and theology, it will aim to contribute to the understanding of the current contours of the relationship between faith and State, religion and law, avoiding reductionism that directs the study of the right only to the written norm and, thus, neglect of the complexity of the current socio-political ordination from the law.

The Confines between Criminal Law and the Political Dimension in Brazilian Legal Modernity (2017/2018)

Coordenador: Professor Diego Nunes

General Objective: The project intends to analyze the relationship between the dimension of the legal order and the forms of political organization in Brazilian legal modernity, particularly problematizing the contradictions, crises, ruptures and continuities that are the basis of the formation of criminal law within this historical flow, so that the different realities of the underlying historical processes can emerge in order to outline new perspectives for the history of Brazilian criminal law and criminal justice.

Specific Objectives:

I) Analyses of said political crimes:

1. Regime transition (Empire-Republic) and criminal codifications;
2. Cold War and National Security Laws;
3. Amnesty: to whom is oblivion granted (subversive or/and agents of the State?), what is the responsibility of the State, the right to truth and reconciliation.

II) Analyses beyond the political crimes traditionally considered:

1. Press offences from the CCrim/1830 to the 1923 Act;
2. Electoral offences: “Electoral Code” (1932 and 1935);
3. Criminalization of the strike between the CP/1890 and special laws;
4. “Crimes of responsibility”: criminal or political legal nature?
5. “Economic crimes”: “popular economy” from national security to consumer society;
6. Political crime, crimes “of politicians”: a criminal history of the “corruption” of the political agents of the State;
7. Criminal law in popular uprisings.

III) Analyses on modern criminal justice and politics:

1. Jury: independence of justice and compatibility with political crimes;
2. Military jurisdiction applied to civilians in peacetime (political matters) and political subversive military;
3. Revolutionary courts (e.g. Revolution of 1930);
4. Reception of the Nuremberg Tribunal by Brazilian penalists.

IV) Analyses of biographies of jurists («Vidas por el derecho»): profiles of political insertion through the law between local and global (e.g., “Triângulo Mineiro” and the military dictatorship – Jacy de Assis, Ismene Mendes…).

The work resulting from this project can be proposed under a double bias: one, the determination of the field of action of criminal repression and its relationship with the political dimension; another, the administration of criminal justice, usually of an extraordinary or exceptional nature, aimed at cases arising from this intimate relationship between law and politics. The first presents the construction of a criminal system through legislation that provides for crimes and special rules in abstract to resolve such controversies. This means privilegioning, as much as possible, the doctrinal discourse, to understand the role of the legal thought of the period. The second, in turn, wishes to show this system moving through jurisdiction. The typology of privileged source is the jurisprudential, in which the judicial praxis is collected. Right, the work with such sources occurs in a dialectical way, due to the continuous influx that legislation, doctrine and jurisprudence exert on each other.

Bibliographic production:

• Article in journals interns: NUNES, Diego. Extradition in Fascist Italy (1922-1943) and in Brazil of Getúlio Vargas (1930-1945) between the ascension of Fascist Criminal Law and the survival of the liberal tradition of Criminal Law. FORUM HISTORIAE IURIS – ERSTE EUROPÄISCHE INTERNETZEITSCHRIFT FÜR RECHTSGESCHICHTE, v. 12. April, p. 1-41, 2017.
• Article in national journals: NUNES, Diego. Legislação Penal e Repressão Política no Estado Novo: uma análise a partir de julgamentos do tribunal de segurança nacional (1936-1945). ACERVO: REVISTA DO ARQUIVO NACIONAL, v. 30, p. 126-143, 2017.
• Article in national journals: NUNES, Diego. Excluído, no caso, qualquer intuito de regeneração, por não se tratar de réu degenerado?: A Interpretação do Sursis e da Liberdade Condicional aos Criminosos Políticos pelo Tribunal De Segurança Nacional (1935-1945). Revista Brasileira De Ciências Criminais, V. 131, P. 117, 2017.
• Book Chapter: Nunes, Diego. Concedendo-lhe Liberdade, Embora Além das Fronteiras: a Expulsão de Olga Benário perante a Corte Suprema. In: Frederico Eduardo Zenedin Glitz. (Org.). Questões de Direito Internacional: pessoa, comércio e procedimento. 1ed.Curitiba: JML, 2017, v. 1, p. 10-32.
• Book Chapter: NUNES, Diego. The Code Pénal in the Itinerary of the Criminal Codification in America and Europe: Influence and Circularity of Models. In: Masferrer, Aniceto. (Org.). The Western Codification of Criminal Law A Revision of the Myth of its Predominant French Influence. 1ed.Cham: Springer, 2018, v. 11, p. 281-294.

Brazilian constitutional history: challenges and perspectives (2014/2018)

Coordinator: Professor Diego Nunes

Constitutional history is not a branch of history or constitutional law. It is much more a way of doing historiography, which takes place under certain conditions starting from the history of law or the history of institutions or political history. Constitutional history is the history of the formation of the fundamental law in a historically determined collective. It is the history of constitutional culture and, at the same time, history of practices, rules, guardianship. It’s never just history of ideas or simply history of legislation. On the other hand, the relationship with the philosophy of law and politics is essential. The historical study of the fundamental principles of constitutional stoneware, starting with the democratic principle, is not possible without knowledge of the doctrines of sovereignty, representation, government, rights, which are asserted in Europe between the Media and modernity. The research aims to produce knowledge about the different processes of historical constitution of the structures, principles, norms and functioning of constitutional law. The study includes: a) the investigation on the epistemological status of constitutional theories in its contextual and historical rooting; b) the development of discourses for the legitimation of the Democratic Rule of Law; c) the substantive and formal contradiction between the various constitutional theoretical manifestations; and d) the interfaces between the state and suprastate spheres of the constitutional phenomenon. This time, we can see the actuality of this way of making history, because constitutionalism is a typical phenomenon of modernity that is still present. Understanding the constitutional dynamism is fundamental to perceive the transformations of the legal and political institutions of the modern state. The study of the modernization processes of the Brazilian State will be emphasized, emphasizing constitutional history, theoretical development and relations with the external order, explaining similarities, dissimilarities and interconnections with the structure and functioning of other States and regional integration relations. The past constitutional reality (state and suprastate) is apprehended through the gathering of its assumptions and theoretical systematizations, its historical trajectories of affirmation and contestation, and its mutual interdependence and with respect to political and social institutions and processes. This Line of Research particularly problematizes the contradictions, crises, ruptures and continuities that underpinning the formation of Constitutional Law, and which can be treated through the different realities and historical processes underlying.

Criminal Law and National Security in Brazilian legal modernity (2014/2017)

Coordinator: Professor Diego Nunes

The research aims to provide coordinates related to the historical-legal designs of modern criminal law and criminal justice, and its relationship with the idea of national security, based on the perception of the historically contingent character of these. As a historical itinerary, it begins with the study of some figures of the crimen laesae maiestatis in the right of the modern age (e.g., the Philippine Ordination and the doctrine surrounding it) in order to offer some introductory elements. In particular, it is about the problem of the crime of lese majeste as a legal lexicon that develops in the early modern age, i closely correlation with the process of politicization linked to the construction of the modern state. This allows to reap the elements of novelty in the concept of political crime from the way it developed between the end of the 18th century and the beginning of the 19th century. In this period, the issue of political dissent as a criminal problem can be privileged from the normative structures; the phenomenon of expansion of the penal system determined by a doubling of the levels of criminal legality between code and special laws is perceived. In the imperial period, the repression of slaves as a crime of rebellion (usual vocabulary for political crime) is an episode that highlights the formation of exception regimes in the configured systems on the rule of law and on the code form. Between the 19th and 20th centuries, during the Old Republic, there is exemplary experience of anarchist emergency and, from the 1930s on, the profound changes in the Brazilian penal system, promoted during the Vargas Era (1930-1945). In this complex period, one perceives the systemic character of the coexistence of regimes of ordinary and exceptional legality, from which the term “national security” ceases to be part of the political and military lexicon and begins to encamp the laws of repression to political dissent. The reflections of this normative structuring on the very valences of legality informed a progressive deprivation of its original guarantor character. Next, it is necessary to analyze the continuity of the idea of national security as structuring for the formatting of repression of political dissent during the Cold War, both in the Military Dictatorship and in the democratic means between it and the Estado Novo. The itinerary concludes with a reflection dedicated to the link between constitutional foundations and structural characterization of criminal systems, especially from the case of the Brazilian Constitution of 1988. This Line of Research particularly problematizes the contradictions, crises, ruptures and continuities that underpinning the formation of Criminal Law and criminal justice from the construction of the ideal of national security in Brazil, and which can be treated through the different realities and historical processes underlying.

Geographical space and the construction of legal spaces (Brazil, 19th century. XIX-XXI)

Coordinated: Professor Diego Nunes

The research aims specifically at the occupation of Brazilian territory by migrants summoned to colonize the interior of this country between the end of the 19th century and the middle of the 20th century and the ways of performing the law in these colonial spaces. Contrary to what happened in the southeast, in which Italians were replaced by slave labor in coffee plantations, in the southern region migration aimed at colonization (and also, mediata and veiled, the whitening of the population). Italian and German leads, mainly, but also Poles, Austrians and even Japanese were accepted in Brazilian territory to settle in the vast space still unoccupied in the interior of the country. The fact that the Brazilian government was unable to make itself present in these spaces lasted even after the arrival of these migrants. Illustrative factor of this situation is that until World War II the populations descended from the settlers predominantly spoke their dialects of origin and not the national language. In the legal field, this absence of the state vector provided an important factor for the perception of a normative pluralism. Some cases are emblematic, such as that of the city of Blumenau, state of Santa Catarina, in which german colonization on the site created a parallel bureaucratic (and legal) state, which provided an autonomous life to the Brazilian State, with the maintenance of links of the colonizing pole with the nation of origin. The need to make use of the legal custom of origin also occurred in cases where the settlers remained abandoned either from the Brazilian government that from their countries of provenance. However, while these colonial spaces remained forgotten by the Brazilian government, the legal spaces of marginalized populations were not recognized (or more precisely, if they were repressed): indigenous villages and quilombos (strongholds of escaped and/or freed slaves). The Brazilian colonial problem occurs precisely in the contradiction between the construction of a right lived in a space where there was only one imagined right. The categories of lived space (as an intrinsic component of a society) versus the imagined space (as self-representation that this society produces) explains how the link between power (state) and space-time dimension can serve as a reconstructive criterion of the colonizing process: a colonizzazione che opera in sostanza come un gigantic cortocircuito fra spazi socio-politici diversi; come un processo, insieme distruttivo e trasformativo, di produzione di località (P. Costa 2012). This perception of the space lived is fundamental to perceive the phenomenon beyond the unitary space of modern sovereignty and the consequent factor of legislative monosm in the sources of law. Even today, the occupation of spaces by peripheral powers to the State does not dispense with the legal phenomenon, as can be seen from the statutes of the social movements of urban and rural land reform. These spaces of peripheral legal pluralism produce a phenomenon of heterotopia (in M. Foucault, Des espaces autres, 1984): in the Brazilian case, the senzala (legal space without rights) and the quilombo (antilegal law and space). These spaces of peripheral powers cannot be considered without right; on the contrary, it is the case of legal historiography to point out the foci of legal pluralism not recognized at that time The migratory phenomenon places this issue at the center of the debate. When the spatial question becomes the central object of historical-legal research, there is a need to approach methodologically: the spatial turn, or space while practiced place (M. de Certeau) the geographical space from another perspective: it is not only objective (Newtonian physics), but also subjective (Einsteinian physics).

History of Criminal Law between Medievo and Modernity (2008/2011)

Coordinator: Professor Arno Dal Ri Junior

Is the collection published at the end of the research part of the collective effort made between researchers from the Centro Studi per la Storia del Pensiero Giuridico Moderno of the University of Florence and the Research Group on The History of Legal Culture? CNPq/UFSC aiming to contribute to the affirmation of the field of the history of law in Brazil. In particular, the essays developed throughout the project and later published in a compilation work entitled “History of Criminal Law between Medievo and Modernity” (Belo Horizonte: Del Rey, 2011) are focused, in particular, on the construction of the modern legal-criminal experience, from medieval vespers to the specific declines of the modern parable between the end of the 19th century and the beginning of the 20th century. The researches allowed to encompass a long period of time, as well as several faces of the criminal experience, in a more in-depth way, from the particular perspective of each researcher. The researchers who worked on the project are part of the list of references to think of the right as a cultural phenomenon, that is, historically localized, departing simultaneously from certain approaches that raise the juridicities to a timeless dimension, as well as those that reduce legal experiences to automatic reflexes of social formations, thus taking these experiences as phenomena with their own thickness.

Crimes against State Security in the History of Western Punitive Culture (2004/2006)

Coordinator: Professor Arno Dal Ri Junior

The project is dedicated to the analysis of the evolution of discourses and practices that influenced the construction of the views and the application of sanctions related to the ”crimen laesae maiestatis’, the “political crime”, the “crime against the State” and the “crime against national security” in the history of western punitive culture. To this end, it presents the crimes mentioned above as representatives of the same genealogy. The analyses are articulated in the following perspective: I.) BUILDING THE NOTION OF A CRIME: The Crime against the State in the Greek Criminal Experience; Emergence and Consolidation of Crimen Laesae Maiestatis in Roman Criminal Law; Evolution in the Criminal Doctrines of the Middle Ages; The Completion of an Itinerary at The Ancien Régime; The crimen laesae maiestatis in the Portuguese ordination between Medievo and Modernity. II) THE TRANSFIGURATION OF A CRIME: The Disputes of the Baron of Montesquieu and the Marquis of Beccaria; The Révolution that makes the transfiguration. III) The SINUOSO ROUTE IN THE RESIGNIFICATION OF A CRIME: The Pénal Code of Napoleon; The Classical School and the rejection of Francesco Carrara; Positive School and Cesare Lombroso; Penal Codes and Laws of Authoritarian Tradition: The Rocco Codice and the Criminal Order in Nazi Germany; The Brazilian Penal System: The Penal Code of Nelson Hungary and the National Security Law; The 21st century and the new enemies of state security.

Criminal Law in Ancient Greece (2004/2006)

Coordinator: Professor Arno Dal Ri Junior

The project is dedicated to the study of the construction of criminal law in ancient Greece, a topic, in general, little addressed by researchers dedicated to the history of law and criminal law. Given the absence of direct sources of criminal law in Greece and, particularly, in Athens, it is essential to consider the testimony of literature – since a very old time it has reported the main features of law – and philosophy, which systematizes the main elements of Greek legal thought. That is why the analysis of dramatic texts, works of forensic oratory and philosophical texts considered essential for the study was included in the program. 1. Greek law and Attic law. Sources; 1.1 The conception of the offence in antiquity. Law and religion; 1.2 Law and norm: thémis, díke, nómos, pséfisma; 1.3 Public offences and private offences; 1.4 The configuration of the subject of offense. 2. Adultery and murder: social and legal meaning; 2.1 Literary testimonies: criminal law in theater and forensic oratory; 2.2 Athenian legislation and tragic fiction. 3. Feathers: forms and evolution; 3.1 The penalty for murder: revenge of blood; 3.2 The courts: public judgment. Procedural rhetoric; 3.3 The question of liability: voluntary/involuntary distinction.

History of Legal Culture (2004)

Coordinator: Arno Dal Ri Junior

This project aims to launch in the Brazilian market a collection of four volumes that will present to the academic community the history of legal culture in the West. In this context, the initiative is ended to the development of an in-depth study of the social, cultural and human assumptions that led to the constitution of a certain intellectual environment in the field of law at different times in the history of the West. The four volumes to be published by the project are articulated within the following perspective: History of Legal Culture – Volume I: Antiquity; History of Legal Culture – Volume II: Middle Ages; History of Legal Culture – Volume III: Modern Age; History of Legal Culture – Volume III: Contemporary Age.