15 January 2020

JOURNAL: Revista do IHGB 180 (2019), issue 481. OPEN ACCESS

Resultado de imagem para IHGB logo"

The Revista do IHGB (Journal of the Brazilian Historical and Geographical Institute), one of the oldest still running history journals in the western world (e. 1839) has published its last issue, with some articles that could interest legal historians:

A constituição castilhista de 1891 e as origens do constitucionalismo autoritário na república brasileira/The castrilhista constitution of 1891 and the origins of the authoritarian constitutionalism in the Brazilian republic (Argemiro Cardoso Moreira Martins, Francisco Rogério Madeira Pinto)
The present paper aims to deal with one of the matrices of Brazilian authoritarian legal discourse. It identifies in Júlio de Castilhos’ work (1860-1903), especially through the formulation of the 1891 July Constitution of the State of Rio Grande do Sul, the first manifestation of an institutional project that intends to establish the concentration of powers in the figure of the Executive’s chief. Based on the constitutional text, in Castilhos’ arguments and of his defenders, it is stated that the Gaucho Constitution laid the foundations of a deeply anti-liberal legal-authoritarian grammar. The objective is to analyze the main institutional innovations that Castilhos fostered to create an authoritarian constitutional model. The Gaucho Constitution emptied the Legislative Power through the subtraction of its own function of legislate, thus shifting the political representation itself to the figure of the President. In all, it ́s completely contrasting with the liberal notion of representation, centered on parliamentary debates and the separation of the powers. It is, therefore, a strongly anti- liberal political thought, victorious in its provincial authoritarian proposals and one of the inspirations for the practices that the whole country would experience in the “Estado Novo” (1937-1945).

As razões do direito administrativo na doutrina brasileira do século XIX (1857-1884)/The reasons of administrative law in 19th century Brazilian legal doctrin (1857-1884) (Walter Guandalini Junior)
This article aims to contribute to the understanding of Brazilian legal culture, by employing content analysis method to examine the “reasons” of 19th century Brazilian administrative doctrine. The investigation of Brazilian jurists’ quotations framework allowed to observe which were the sources of administrative law at the time, what type of dialogue the legal erudite knowledge established with other fields of public law, what kind of relationship it had with foreign and pre-modern legal culture, and what differences it had in relation to private law. At the end it was possible to perceive that the main source of Brazilian administrative law in the period was positive legislation, which reflects the functions attributed to the discipline by a transitional legal culture.
Poder e punição através da clemência: o direito de graça entre direito constitucional e penal na cultura jurídica brasileira (1824-1924)/Power and punishment through clemency: pardon between constitutional and criminal law in the Brazilian legal culture (1824-1924) (Arthur Barrêtto de Almeida Costa)
Pardon is an institute that frontally contradicts legalism, by allowing the intrusion of a discretionary power in criminal law. However, it was kept in nearly all Latin-American and European countries during the 19th century. This paper aims to understand how and why this happened in Brazil. We analyzed works in constitutional and criminal law, with the support of newspapers and registers from the State Council. Three main arguments could be identified as justification for the existence of imperial mercy: conciliation of the abstract law with concrete justice; atonement of convict’s guilt and correction of legal flaws. There was a forth and peripheral argument: rewards for services to the State. Legal flaws corrected through pardon were the harshness of the June 10th of 1835 act on slave crimes repression; problems with the appeal review (recurso de revista); and the delay in death penalty abolishment. Criticism to pardon was minimum. With the emergence of the republic, some roles of executive clemency were taken by parole and criminal review (revisão criminal). Criticism grew, but was still marginal. It is possible to see, throughout the 19th century, an increasing distance between pardon and constitutional law and its approximation to criminal law. It is also possible to say that executive mercy suits Brazilian legal culture of the 19th century well. Some reasons are: its connection to the pouvoirmoderateur, a favorable international context and its usefulness in correcting legislative flaws.
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