Stefano Solimano (2010) showed us how this worked in the application of the Austrian criminal code of 1787 by the perspective of judges. When this sort of things happens, past and present became intermingles in sometimes surprising ways. This paper talks about transition and the uncertainties it brings. This helps to enlarge the perspectives on where law can be found, and the multiple institutional voices from which it emerges.įurthermore, it is also useful to understand the multiple ways in which law reacts to change.
Whenever necessary, the interpretations proposed were helped by the use of legal writings of those times. Therefore, the main sources for this paper were the records of the second Council of State. It was also built in administrative institutions, and the Emperor and the Council of State were fundamental on its creation. It is an instrument for the flexibilization of law that, as it will be later discussed, is deeply imbedded in the logics of the Ancien Régime but managed to survive through modern times.īrazilian law in the 19 th century was not crafted only in the courtrooms. This institute allows a public authority (in the imperial Brazil case, the Emperor) to reduce, change or even forgive a penalty imposed on a certain defendant. As a tool in understanding how the institution reacted to the changes in criminal law through the combination of old and new elements, I will deal with pardon. To fulfill this task, I chose as focal institution the Council of State, one of the most important elements of the Brazilian administrative structure during imperial times 5. This research aims to clarify how some elements of the Brazilian legal culture of those times reacted to this change. It is, therefore, a moment for the affirmation of a properly Brazilian legal order, which, despite with small steps, was distancing itself from the Portuguese one. In its article 179, responsible for the establishment of the rights of Brazilian citizens, it commands, in its paragraph 18: “There shall be organized as soon as possible a Civil Code 3, and a Criminal one, founded on the solid bases of Justice and Equity” 4. The urgency of this reform is inscribed in the Brazilian Constitution of 1824 itself. A target for many expectations, it is the landmark in overcoming the widely feared book V of the 1603 Philippine Ordinations, which, with its draconian dispositions 2, partially regulated Brazilian criminal law up to then. One of those eras is the main focus of this paper.ġ830 is the year of promulgation of the first Brazilian criminal code 1.
And this is especially true for times of transition, when changes and reforms make the application of penalties even more doubtful. Even though those command words resonate since a long time ago, there is still a lot of room for doubt in the realm of punishment. Palavras-chave: Conselho de Estado, Graça, Legalidade.Ĭertainty and legality are some of the fundamental bases of contemporary criminal law. Vimos que a maioria das decisões do imperador seguem a opinião do conselho os casos se relacionam principalmente a criminalidade militar e escrava o uso do instituto diverge do que a doutrina prescrevia, mas contribuiu para controlar focos de instabilidade em um período turbulento. Foram analisados cerca de 160 casos presentes nas atas do conselho. O objetivo desse trabalho é discutir os principais aspectos relacionados ao modo como o recurso de graça era tratado no segundo Conselho de Estado brasileiro. Keywords: State Council, Pardon, Legality. I sow that most of the emperor’s decisions follow the opinion of the Council the cases related mostly to military and slave criminality the use of pardon is different from the suggestions from legal literature, but contributed to control focuses of instability in a turbulent period. I analyzed some 160 cases from the council’s records. The aim of this paper is to discuss the main aspects related to the way which pardon was treated in the Brazilian second State Council.
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