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Media of legal culture in 19th century Brazil: mapping the global inside the local: a contribution to the study of entanglement processes in legal history

Grant number: 13/03809-5
Support type:Scholarships abroad - Research
Effective date (Start): September 01, 2013
Effective date (End): August 31, 2014
Field of knowledge:Applied Social Sciences - Law - Theory of Law
Principal Investigator:Samuel Rodrigues Barbosa
Grantee:Samuel Rodrigues Barbosa
Host: Thomas Duve
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
Local de pesquisa : Max Planck Society, Frankfurt, Germany  

Abstract

The present research investigates the identification between political and legal spaces (unitary legal system and the correspondent written culture), synthesized by the expression "national law", as the case of Brazil in the nineteenth century. For such enterprise, two authoritative thesis should be evaluated. Thesis I: pertaining to the lasting interpretation schema built upon broad narratives of the legal history concerning the so-called "long nineteenth century", that is, the passage from the is commune to the state legislated law. Thesis II: the global dynamics active in this process is assessed in terms of the influence of foreign models (as the French, for example). Taking into account the legal nationalism, as well as the influence of paradigms received from abroad, an influential common point of view interprets the differentiation of the Brazilian Law. This analysis will be based on the study of the media employed in the written diffusion of legal culture, especially with reference to the books edited in Brazil from 1808 to 1917. In 1808 the Royal Press was founded in Rio de Janeiro, a fact which set in motion the publishing industry in Brazil. In 1917 the first Civil Code comes into force. Preliminary findings are sufficient to oppose both arguments and propose a few hypothesis. Ad I. The study of the paratext and that of the book genres give enough reason to suppose that the legal form is not a prius provided with an identity, but otherwise configured in different media: abridged compilations and paraphrases for "popular use" (para uso do povo), books with mnemonic purposes (for instance, dictionaries of rules in alphabetical order). Attributes, which are particular to the formal rationalization of legislation (generalization, abstraction, systematization), are invented from the book design. Another idea is that the routinization of legislation is mediated by books which bring together the legal and doctrinary forms: doctrinary books are used as codes, taken as empirically valid, books combine legislated rules with regulae juris and doctrinary topoi, the foreign doctrine works as a template for legislative review, and is widely used in courts. Ad. II. In order to tackle the issue of the paradigm influence, one has to assume the identity and exemplariness of a model worth of imitation. Such assumption may be questioned by the hypothesis that the local legal book is, as a matter of fact, a kaleidoscope, an eclectic ensemble of various traditions. From the local point of view, neither Europe, nor the national traditions constitute a coherent pattern. The main idea is that the study of the configuration of written media is able to offer a fresh interpretation of the relation between the global and local legal cultures, by questioning the identities taken for granted by legal historiographies biased towards national traditions. (AU)