O código possível: a tarefa estatal da codificação civil no Império do Brasil

Author(s)

Marcele Garcia Guerra

• Document type: Master's Dissertation
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2010-08-19

Examining board members

Gilberto Bercovici; Samuel Rodrigues Barbosa; Andrea Slemian

• Advisor: Gilberto Bercovici

Abstract

The civil codification process history in Brazil during the nineteenth century is commonly told as a frustrated legal fable. Badly systematized and incomplete, the process appears in historical narratives as a succession of failures despite a series of monstrous efforts of eminent jurists who, with their brilliant designs, found no space for recognition of their visionary works in the little cut context in which Brazil was. This view, both biased and protective of a legal class, reveals little about the process of drafting, or not drafting, of a Brazilian civil code, throughout the nineteenth and early twentieth centuries, can bring as contribution to the understanding of fundamental aspects of building the State in Brazil. Opposing this view, there is a proposal to investigate the trajectory of Brazils Civil Code by seeing Codification as a state task. In other words, retelling the history of civil codification in terms of states elements, i.e., within a perspective of analysis that tries to read a supposed state agenda of legislative priorities (legislative procedure). This is because the legislative practice is always embedded in contexts which ultimately dictate the outcome of each state enterprise to carry out the civil code. This, incidentally, is the focus of this research. The investigation of the legal structure formation process in Brazil represented by the Civil Code will be accomplished through historical analysis, and within the time gap which is the XIX century, noting how it was forged in Brazil a new model of law: the Modern Law, marked by an organizational structure (or order) which is characterized mainly by the existence of a body of laws organized into codes and written Constitutions. From the relation study of how this structure new legal order - formation process happened in Brazil and the political contexts of its development, it starts analyzing the meaning and purpose that existed to structure the law in this particular way, i.e., the legal project in Brazil. Project capable of consolidating certain order, based on clear interests (but not always unveiled): the liberal economic order. (AU)