PhD in Theory and History of Law from the University of Florence. I work with the legal history of the relations between state and society, especially administrative law in the 19th and 20th centuries. I have worked with the legal histories of pardon, expropriation, military law, social security and the history and theory of legal history. Supervisors: Bernardo Sordi and Ricardo Sontag
This paper analyses citations of doctrine in handbooks of administrative lawpublished in the nine... more This paper analyses citations of doctrine in handbooks of administrative lawpublished in the nineteenth century in the Civil Law World–that is, Europeand Latin America. I scanned through 81 books,finding c 25,000 citations toc 5000 different texts. I built a graph with all citations tofind relations ofproximity and distance between different books and national groups ofbooks. I found that French lawyers were the most cited, but they lostground in the late nineteenth century.‘Germans’and, to a less extent,‘Italians’gained ground. Germans and Austrians constituted a mostlyseparated citation circuit. Spanish and Hispano Americans tended to citeSpanish and French authors but were less integrated. Italians mixed a largenumber of Italian references with French ones. Brazilians and Portugueseheavily cited the French. Latin Americans did not constitute a unifiedgroup. Mediterranean countries shared more characteristics and referenceswith Latin Americans than with Germans and the Dutch. Thesefindingschallenge essentialist ideas of‘continental law’and‘Latin America’.
Which virtues and vices 19th century Brazilian public opinion used to evaluate legal books and sc... more Which virtues and vices 19th century Brazilian public opinion used to evaluate legal books and scholars? The paper analyzed the texts published in Brazilian newspapers commenting on books of public law, which are called “evaluation literature”, to answer this question. Major virtues were: utility, clarity, method, moderation; minor ones were: originality, experience, abnegation etc. This chart of values can be derived from the objectives of Brazilian legal scholarship of the time: not an academic discipline defined by research, but a technical discourse aimed at professional instruction and public intervention.
O século xix foi a era do legalismo, e geralmente pensa-se o direito administrativo como se estiv... more O século xix foi a era do legalismo, e geralmente pensa-se o direito administrativo como se estivesse fundado na legalidade. Entretanto, o direito administrativo oitocentista tinha à disposição um amplo arsenal de mecanismos de flexibilização. O nosso objetivo é abordar aqueles presentes na atividade do Conselho de Estado brasileiro, órgão de cúpula da administração durante o Império, mostrando como tais mecanismos funcionavam e por que existiam. Identificámos, na nossa análise, os seguintes: o uso da equidade, para corrigir insuficiências da legislação sobre funcionários públicos; a graça, para corrigir defeitos das leis punitivas e erros de julgamento; e a atividade interpretativa num cenário de pluralismo normativo e jurisdicional, para mitigar as incertezas da administração eclesiástica.
How can we grasp the architecture of a text, and what can it reveal about the cultural background... more How can we grasp the architecture of a text, and what can it reveal about the cultural background of its authors? This paper focuses on bibliometric data to understand how Brazilian administrative law scholars crafted their texts-especially, which legal cultures they interacted the most with and which sources of law they employed, and how. I work with two sets of data comprising the Empire and the First Republic: first, textbooks of administrative law; second, judicial decisions and academic texts on expropriation drawn from law journals. I analyzed the nationalities of the authors cited; the most used books and authors; how each different kind of source of law was used. The history of the Brazilian uses of foreign legal cultures could be divided into two periods; in 1859-1900ca., there was a predominance of the French, followed by the Portuguese (especially for civil procedure), and distantly by the Brazilians. From 1900 onwards, Brazilians took the lead, followed roughly by the French, Italians, Americans, Portuguese, and Germans. Regarding the sources of law, judges had a higher tendency than attorneys and academics to quote Brazilian doctrine, due to a greater need for safer, more direct reasoning, based on positive law. Case-law was hardly quoted, due to its limited circulation, which occurred almost exclusively through law journals. It was possible, in the end, to produce a chart of the general characteristics of Brazilian administrative law and its cultural framework. Brazilian legal culture was highly cosmopolitan: it cited more foreign authors than national ones. Most of them were European, as Latin-American scholarship was largely ignored. This international orientation sometimes hindered the development of a national doctrine and led to a critical importation, but also gave vitality to Brazilian administrative law.
Revista Brasileira de Direito Processual Penal, 2021
Military criminal law in 19th century Brazil was governed mostly by the Articles of War (1763), w... more Military criminal law in 19th century Brazil was governed mostly by the Articles of War (1763), which retained many characteristics from Early Modern punitive practices. Did pardon of soldier offenders too retained its older features, completing the logic of Ancien Régime punishment, based on the duality fear/love? To answer this, I analyzed the opinions of the Council of State, Section of Navy and War on pardon petitions. Contextualizing these data with criminal statistics from the armed forces, we can see that the death penalty was lavishly imposed, but capital sentences tended to be reduced going up in the judicial structure. This, coupled with the institutional design favoring a quick trial in military procedural law shows that the system was designed to instill fear, especially during the Paraguayan War. Pardons were frequently given to counter the harshness of the Articles of War, just like in the Ancien Régime, but new functions were added, like the correction of procedural errors. I concluded that pardon retained much of its older logic, yet military law was not “transitional”, but a natural complement to the violent way of recruitment pursued by the armed forces
Pardon is an ambivalent tool, with roots both in criminal and constitutional law. This paper aims... more Pardon is an ambivalent tool, with roots both in criminal and constitutional law. This paper aims to understand the constitutional characteristics of royal clemency in imperial Brazil. I analyzed two of these features that can be deemed more prominent. First, I looked into the public opinion, which was one of the crucial mechanisms of 19th-century constitutional theory and investigated how civil society interacted with the state’s impulses regarding pardon. The main aspects I dealt with were discussions on the legitimacy of the very existence of royal mercy and the pertinence of specific pardons. Second, I investigated how the monarch interfered in certain parts of Brazilian legislation to push it into a better performance. The main aspect handled with recourse to pardon was the functioning of the jury. The special place of pardon in Brazilian 19th-century constitutional landscape can only be understood taking into consideration its connection with the particular Brazilian separation of powers, which granted the emperor a unique moderating power. The main conclusions were that the public opinion, expressed mainly in the press and the parliament, had an important role in both shaping pardon and legitimizing it; and that the emperor, through the moderating power, used pardon to cope with some malfunctioning of Brazilian legislation.
Administory: Journal for the History of Public Administration / Zeitschrift für Verwaltungsgeschichte, 2020
Nineteenth century features the supremacy of the
administrative state and the absolutized concept... more Nineteenth century features the supremacy of the administrative state and the absolutized conception of property, expressing liberalism. By then, lawyers thought of expropriation as a clash between these two values. However, in early twentieth century, as the interventionist state expanded, the public power colludes with private citizens, and the subjects profited from expropriations. This challenged the liberal opposition mentality and was followed by the incorporation of a social conception of property. Throughout one century, the interpretation of expropriation changed as the underlying moral normativity on property changed, prompted by economic modifications, even though the legal texts remained mostly the same.
A graça é um instituto que contraria frontalmente o legalismo, por permitir a intrusão de um pode... more A graça é um instituto que contraria frontalmente o legalismo, por permitir a intrusão de um poder discricionário no direito penal. Entretanto, ela permanece em quase todos os países europeus e latino-americanos no século XIX. Este trabalho procura compreender como e por que isso ocorreu no Brasil. Analisamos obras de direito constitucional e penal, com o apoio de jornais e das atas do Conselho de Estado. Identificamos três argumentos que justificavam a existência da misericórdia imperial: conciliar lei abstrata com justiça do caso concreta; reconhecer a expiação da culpa do réu; e corrigir falhas no ordenamento. Um quarto e marginal argumento ainda pode ser observado: a possibilidade de recompensar serviços prestados ao Estado. As falhas legais corrigidas pela graça foram a dureza da lei de 10 de junho de 1835 sobre repressão de crimes cometidos por escravos; problemas no recurso de revista; e a demora na abolição da pena de morte. As críticas ao instituto eram mínimas. Com a república, algumas funções da clemência executiva passam a ser feitas pelo livramento condicional e pela revisão criminal. As críticas aumentam, mas ainda são minoritárias. É possível identificar, ao longo do século XIX, um afastamento da graça do direito constitucional e uma aproximação do direito penal. Também é possível dizer que a graça se adapta bem à cultura jurídica brasileira oitocentista, por causa da sua ligação com o poder moderador, o contexto internacional favorável e a sua utilidade em corrigir falhas legislativas.
The aim of this paper is to discuss the main aspects related to the way which pardon was treated ... more 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. I analyzed some 160 cases from the council’s records. 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.
O presente texto é a base da conferência apresentada no “I Seminário Metodológico” promovido pela... more O presente texto é a base da conferência apresentada no “I Seminário Metodológico” promovido pela Diretoria de Ensino e Pesquisa do CAAP, no dia 27 de março de 2019, na sala da Congregação da Faculdade de Direito da UFMG.
This paper analyses citations of doctrine in handbooks of administrative lawpublished in the nine... more This paper analyses citations of doctrine in handbooks of administrative lawpublished in the nineteenth century in the Civil Law World–that is, Europeand Latin America. I scanned through 81 books,finding c 25,000 citations toc 5000 different texts. I built a graph with all citations tofind relations ofproximity and distance between different books and national groups ofbooks. I found that French lawyers were the most cited, but they lostground in the late nineteenth century.‘Germans’and, to a less extent,‘Italians’gained ground. Germans and Austrians constituted a mostlyseparated citation circuit. Spanish and Hispano Americans tended to citeSpanish and French authors but were less integrated. Italians mixed a largenumber of Italian references with French ones. Brazilians and Portugueseheavily cited the French. Latin Americans did not constitute a unifiedgroup. Mediterranean countries shared more characteristics and referenceswith Latin Americans than with Germans and the Dutch. Thesefindingschallenge essentialist ideas of‘continental law’and‘Latin America’.
Which virtues and vices 19th century Brazilian public opinion used to evaluate legal books and sc... more Which virtues and vices 19th century Brazilian public opinion used to evaluate legal books and scholars? The paper analyzed the texts published in Brazilian newspapers commenting on books of public law, which are called “evaluation literature”, to answer this question. Major virtues were: utility, clarity, method, moderation; minor ones were: originality, experience, abnegation etc. This chart of values can be derived from the objectives of Brazilian legal scholarship of the time: not an academic discipline defined by research, but a technical discourse aimed at professional instruction and public intervention.
O século xix foi a era do legalismo, e geralmente pensa-se o direito administrativo como se estiv... more O século xix foi a era do legalismo, e geralmente pensa-se o direito administrativo como se estivesse fundado na legalidade. Entretanto, o direito administrativo oitocentista tinha à disposição um amplo arsenal de mecanismos de flexibilização. O nosso objetivo é abordar aqueles presentes na atividade do Conselho de Estado brasileiro, órgão de cúpula da administração durante o Império, mostrando como tais mecanismos funcionavam e por que existiam. Identificámos, na nossa análise, os seguintes: o uso da equidade, para corrigir insuficiências da legislação sobre funcionários públicos; a graça, para corrigir defeitos das leis punitivas e erros de julgamento; e a atividade interpretativa num cenário de pluralismo normativo e jurisdicional, para mitigar as incertezas da administração eclesiástica.
How can we grasp the architecture of a text, and what can it reveal about the cultural background... more How can we grasp the architecture of a text, and what can it reveal about the cultural background of its authors? This paper focuses on bibliometric data to understand how Brazilian administrative law scholars crafted their texts-especially, which legal cultures they interacted the most with and which sources of law they employed, and how. I work with two sets of data comprising the Empire and the First Republic: first, textbooks of administrative law; second, judicial decisions and academic texts on expropriation drawn from law journals. I analyzed the nationalities of the authors cited; the most used books and authors; how each different kind of source of law was used. The history of the Brazilian uses of foreign legal cultures could be divided into two periods; in 1859-1900ca., there was a predominance of the French, followed by the Portuguese (especially for civil procedure), and distantly by the Brazilians. From 1900 onwards, Brazilians took the lead, followed roughly by the French, Italians, Americans, Portuguese, and Germans. Regarding the sources of law, judges had a higher tendency than attorneys and academics to quote Brazilian doctrine, due to a greater need for safer, more direct reasoning, based on positive law. Case-law was hardly quoted, due to its limited circulation, which occurred almost exclusively through law journals. It was possible, in the end, to produce a chart of the general characteristics of Brazilian administrative law and its cultural framework. Brazilian legal culture was highly cosmopolitan: it cited more foreign authors than national ones. Most of them were European, as Latin-American scholarship was largely ignored. This international orientation sometimes hindered the development of a national doctrine and led to a critical importation, but also gave vitality to Brazilian administrative law.
Revista Brasileira de Direito Processual Penal, 2021
Military criminal law in 19th century Brazil was governed mostly by the Articles of War (1763), w... more Military criminal law in 19th century Brazil was governed mostly by the Articles of War (1763), which retained many characteristics from Early Modern punitive practices. Did pardon of soldier offenders too retained its older features, completing the logic of Ancien Régime punishment, based on the duality fear/love? To answer this, I analyzed the opinions of the Council of State, Section of Navy and War on pardon petitions. Contextualizing these data with criminal statistics from the armed forces, we can see that the death penalty was lavishly imposed, but capital sentences tended to be reduced going up in the judicial structure. This, coupled with the institutional design favoring a quick trial in military procedural law shows that the system was designed to instill fear, especially during the Paraguayan War. Pardons were frequently given to counter the harshness of the Articles of War, just like in the Ancien Régime, but new functions were added, like the correction of procedural errors. I concluded that pardon retained much of its older logic, yet military law was not “transitional”, but a natural complement to the violent way of recruitment pursued by the armed forces
Pardon is an ambivalent tool, with roots both in criminal and constitutional law. This paper aims... more Pardon is an ambivalent tool, with roots both in criminal and constitutional law. This paper aims to understand the constitutional characteristics of royal clemency in imperial Brazil. I analyzed two of these features that can be deemed more prominent. First, I looked into the public opinion, which was one of the crucial mechanisms of 19th-century constitutional theory and investigated how civil society interacted with the state’s impulses regarding pardon. The main aspects I dealt with were discussions on the legitimacy of the very existence of royal mercy and the pertinence of specific pardons. Second, I investigated how the monarch interfered in certain parts of Brazilian legislation to push it into a better performance. The main aspect handled with recourse to pardon was the functioning of the jury. The special place of pardon in Brazilian 19th-century constitutional landscape can only be understood taking into consideration its connection with the particular Brazilian separation of powers, which granted the emperor a unique moderating power. The main conclusions were that the public opinion, expressed mainly in the press and the parliament, had an important role in both shaping pardon and legitimizing it; and that the emperor, through the moderating power, used pardon to cope with some malfunctioning of Brazilian legislation.
Administory: Journal for the History of Public Administration / Zeitschrift für Verwaltungsgeschichte, 2020
Nineteenth century features the supremacy of the
administrative state and the absolutized concept... more Nineteenth century features the supremacy of the administrative state and the absolutized conception of property, expressing liberalism. By then, lawyers thought of expropriation as a clash between these two values. However, in early twentieth century, as the interventionist state expanded, the public power colludes with private citizens, and the subjects profited from expropriations. This challenged the liberal opposition mentality and was followed by the incorporation of a social conception of property. Throughout one century, the interpretation of expropriation changed as the underlying moral normativity on property changed, prompted by economic modifications, even though the legal texts remained mostly the same.
A graça é um instituto que contraria frontalmente o legalismo, por permitir a intrusão de um pode... more A graça é um instituto que contraria frontalmente o legalismo, por permitir a intrusão de um poder discricionário no direito penal. Entretanto, ela permanece em quase todos os países europeus e latino-americanos no século XIX. Este trabalho procura compreender como e por que isso ocorreu no Brasil. Analisamos obras de direito constitucional e penal, com o apoio de jornais e das atas do Conselho de Estado. Identificamos três argumentos que justificavam a existência da misericórdia imperial: conciliar lei abstrata com justiça do caso concreta; reconhecer a expiação da culpa do réu; e corrigir falhas no ordenamento. Um quarto e marginal argumento ainda pode ser observado: a possibilidade de recompensar serviços prestados ao Estado. As falhas legais corrigidas pela graça foram a dureza da lei de 10 de junho de 1835 sobre repressão de crimes cometidos por escravos; problemas no recurso de revista; e a demora na abolição da pena de morte. As críticas ao instituto eram mínimas. Com a república, algumas funções da clemência executiva passam a ser feitas pelo livramento condicional e pela revisão criminal. As críticas aumentam, mas ainda são minoritárias. É possível identificar, ao longo do século XIX, um afastamento da graça do direito constitucional e uma aproximação do direito penal. Também é possível dizer que a graça se adapta bem à cultura jurídica brasileira oitocentista, por causa da sua ligação com o poder moderador, o contexto internacional favorável e a sua utilidade em corrigir falhas legislativas.
The aim of this paper is to discuss the main aspects related to the way which pardon was treated ... more 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. I analyzed some 160 cases from the council’s records. 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.
O presente texto é a base da conferência apresentada no “I Seminário Metodológico” promovido pela... more O presente texto é a base da conferência apresentada no “I Seminário Metodológico” promovido pela Diretoria de Ensino e Pesquisa do CAAP, no dia 27 de março de 2019, na sala da Congregação da Faculdade de Direito da UFMG.
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administrative state and the absolutized conception
of property, expressing liberalism. By then, lawyers
thought of expropriation as a clash between these two
values. However, in early twentieth century, as the
interventionist state expanded, the public power colludes
with private citizens, and the subjects profited from
expropriations. This challenged the liberal opposition
mentality and was followed by the incorporation of a
social conception of property. Throughout one century,
the interpretation of expropriation changed as the
underlying moral normativity on property changed,
prompted by economic modifications, even though the
legal texts remained mostly the same.
administrative state and the absolutized conception
of property, expressing liberalism. By then, lawyers
thought of expropriation as a clash between these two
values. However, in early twentieth century, as the
interventionist state expanded, the public power colludes
with private citizens, and the subjects profited from
expropriations. This challenged the liberal opposition
mentality and was followed by the incorporation of a
social conception of property. Throughout one century,
the interpretation of expropriation changed as the
underlying moral normativity on property changed,
prompted by economic modifications, even though the
legal texts remained mostly the same.