"Curar todas as moléstias com um único medicamento": os juristas e a pena de prisão no Brasil (1830-1890)

Abstract

As already highlighted by historiography, the criminal code of 1830 is an important milestone in the history of imprisonment in Brazil. However, the issue concerning the differences between the 1830 and the 1890 code has not been properly addressed yet. The 1830 code is said to have opted for “multiple punishments“, where as that of 1890 for “single punishments”: references to the latter can be found in legal texts of the nineteenth century. This article aims to explore the very specific characteristics of these two codes in the legal culture of the nineteenth century and what position jurists took on the desirable changes in the set of punishments laid down in the 1830 code, that is, how, if at all, they would contemplate imprisonment as compared to other punishments provided for in the code (flogging, death penalty etc.). Methodologically, the article analyses the texts of both codes and those written by Brazilian jurists of the time, taking into account the legal scope and the legal ideas not only as abstract schemes, but also as ideas embedded in specific literary genres and related to specific roles played by the authors of the texts. It was thus possible to understand that: a) even within the not so appropriate genre ‘commentary, Brazilian jurists took a stand, especially when the legal provisions on the penalties raised civilizational issues, and b) the centrality of imprisonment is enhanced in the 1890 code not only quantitatively, and this difference was perceived by the jurists of the time.