Uma “clamorosa e perigosa ‘desintegração’ do direito nacional”? Ordem, liberdades e a questão da diversidade legislativa no processo penal brasileiro (1889-1930)

Abstract

In this thesis, I analyze the dynamics that allowed the development of the competencies of the criminal procedural legislation to the states during the Brazilian First Republic (1889-1930) and the responses of the legal class to this phenomenon. This event occurred between the implementation of a specific model of federalism in Brazil (which emerged as a middle ground between centralism and ultra-federalism), together with discourses aimed at maintaining liberalism in criminal law and criminal procedure, as a balance between order and freedom. It was in this context that the legal class, which oscillated between multifaceted and eclectic positions and more technical positions, interpreted and acted upon these republican criminal procedure reforms. To investigate these reforms, I make use of: the conceptual apparatus of the history of science, considering jurists as a type of scientist, who communicated through articles and legal congresses; the notion of tradition, which is continuously reinterpreted by these scientists and made the imperial legislation as part of a legislative corpus, to be maintained or reformed; the use of order and freedom as categories of the penal discourse, and cultural translation, operating between eras or spaces as a form of adaptation and negotiation between past, present and distinct countries. As regards the legal-scientific community, I propose to classify jurists into archetypes in order to ascertain which ones were more inclined towards legal practice, politics or academia, and which ones had more than one vocation (and the relationship between these different inclinations). The books written by these jurists can be ordered into textual genres, which helps to understand the types of literary production of this community. I was able to verify: the use of foreign models for the adaptation of Brazilian legislation in the format of procedural legislative competence for the states, especially Argentina’s model; that Brazilian federalism was directed towards decentralization, unlike Argentina’s federalism; the importance of federal legislation as an indirect model for state codifications; several modifications in the institution of the jury, which was, however, maintained by the Constitution of 1891; the importance of Law congresses and articles; as networks of scientific debate for the creation of a consensus in favor of the reunification of the process; the greater presence of monographs in the period of the First Republic in comparison with the Empire; the balance between the political legal professional and the bureaucrat at the beginning of the First Republic, with the predominance of the bureaucrat at the end of the period, and the translation of the debates between accusatorial and inquisitorial system, reproduced in the discussions of legislative reform in Europe, especially by the positivists, adapted by Brazilian doctrine. Finally, from the comparison between the imperial, republican and the Estado Novo legislations it was possible to conclude that the legislation of the First Republic — but not necessarily its practice — tended to be more liberal than those of those other eras, although it also served as a laboratory for some anti-liberal solutions that would be used in the Estado Novo’s Criminal Procedure Code of 1941.