Can Criminal Procedure Ever Be “Modern”? A Historical Comparative Perspective (Editorial of the Dossier “History of Criminal Procedure in Modernity”) (original) (raw)
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Can Criminal Procedure Ever Be “Modern”? A Historical Comparative Perspective
Revista Brasileira de Direito Processual Penal, 2021
This article is not a mere introduction to the dossier of the Revista Brasileira de Direito Processual Penal on “History of Criminal Procedure in Modernity” (composed of 13 contributions on Belgium, Brazil, Finland, France, Italy and The Netherlands), but it also touches upon three methodological questions of comparative legal history. The first one relates to the proper concept of “modernity”, which can be understood differently, not only in various scientific areas (sociology, history, legal history…), but also in different parts of the world (the French and English perceptions of the word designating different periods). The second one is the use of “models”, such as inquisitorial versus accusatorial procedures, or popular and lay courts versus professional justice administration. Can such kinds of concepts historically be attached to certain times and places, or should legal scholarship avoid to do so, acknowledging that all systems are always mixed? The third one claims that all comparative legal history ought to be contextual. The dogmatic (or ideal) developments of law, very often explained by referring to legal transplants and translations or hybridisations, can only really be understood by searching for factual factors, responsible for the impact of certain “foreign” ideas.
Brazilian law and legal culture in the XIX th century
Brazililan Law and Legal Culture in the XIX Century, 2018
After reviewing the place of legal history in Brazilian legal academia, and the theoretical basis of its recent development in the author's own work, the paper takes two paradigmatic fields of legal culture in 19 th century Brazil: the organization of the Judicial Power and the establishment of an Administrative Jurisdiction. Both reflect the importance of liberal conservative ideals in monarchical Brazil, and at the same time the importance of debates concerning the very idea of law and justice. The last two sections try to show how legal scholars were involved in these debates. Brasilianisches Recht und Rechtskultur im 19. Jahrhundert. Nach der Verortung von Rechtsgeschichte in der brasilianischen Rechtswissenschaft und der theoretischen Basis in der jüngsten Entwicklung in der eigenen Arbeit des Autors greift dieser Gastbeitrag zwei paradig-matische Felder der Rechtskultur im Brasilien des 19. Jahrhunderts auf: die Organisation der Judikative und die Gründung einer Verwaltungsgerichtsbarkeit. Beide spiegeln die Bedeutung liberal-konservativer Ideale im monarchischen Brasilien wider und zugleich die Bedeutung von Debatten über die Idee von Recht und Gerechtigkeit. Die letzten beiden Abschnitte versu-chen zu zeigen, wie Rechtswissenschaftler an diesen Debatten beteiligt waren. Legal scholarship and law itself have changed dramatically in the second half of the 20 th century. The creation of constitutional courts in several jurisdictions , the incorporation of social, welfare, and identity rights in constitutions , globalization, the presence of a transnational network of private actors in business transactions, the appeal to constant institutional borrowings and transplant across national borders, and finally the rise of the virtual world, all of these are important factors in the process of social and legal change. Legal theory has entered into a fruitful dialogue with new epistemological trends, such as analytical and hermeneutical philosophies 1). Legal historiography has also felt the influence of different strands of theory, many of them shaped *) Law School, University of São Paulo 1) In line with the wittgensteinian tradition as suggested by John Searle and the hermeneutic tradition of H.-G. Gadamer, particularly the way both traditions converge in the work of K a rl-O t t o A p el , starting with Transformation der Philo-DIESE DATEI DARF NUR ZU PERSÖNLICHEN ZWECKEN UND WEDER DIREKT NOCH INDIREKT FÜR ELEKTRONISCHE PUBLIKATIONEN DURCH DIE VERFASSERIN ODER DEN VERFASSER DES BEITRAGS GENUTZT WERDEN. BEITRAG AUS: ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE, GERMANISTISCHE ABTEILUNG
2021
The history of Belgium's criminal procedure is deeply related to its French heritage through its Code d'instruction criminelle of 1808 still in force nowadays. In order to portray the modern history of Belgium's criminal procedure, this paper aims at emphasizing the evolution of the reform initiatives regarding the most symbolic aspects inherited from the French procedure: the Code of 1808 itself, the pretrial investigation focused on the juge d'instruction's person and the emblematic popular justice of the cour d'assises. Divided into six periods from 1814 to 2020, this historical research will address and contextualize issues such as the replacement or the maintaining of the French Code, the improvement of the instruction according to its Napoleonic main features or its transformation into another type of pretrial investigation as well as the limitation or even the abolition of popular justice.
Uma genealogia dos discursos críticos sobre o autoritarismo do Código de Processo Penal Brasileiro
Sequência: estudos jurídicos e políticos , 2021
Este artigo apresenta uma pesquisa sobre os discursos críticos que atribuem o autoritarismo do processo penal brasileiro a um legado da legislação processual penal italiana fascista de 1930. Em primeiro lugar, revela a impossibilidade desta comparação, em razão da falta de fontes que possibilitem verificar se realmente houve influência da legislação fascista no Código de Processo Penal Brasileiro de 1941. Então, analisa-se como esses discursos críticos difundidos entre os estudiosos do processo penal brasileiro nos anos de 1990 e estabeleceram uma ruptura com o discurso crítico anterior. Finalmente, a pesquisa objetiva demonstrar como a aproximação entre o Código de Processo Penal Brasileiro e o Código Rocco foi artificial e pode ter contribuído para que os processualistas penais não percebessem as influências de outras legislações estrangeiras no processo penal e nas práticas judiciais brasileiras, e, consequentemente, pode ter impedido que criassem estratégias para implementar as garantias constitucionais nessas novas formas processuais.
The French heritage put to the test of time: history of criminal procedure in Belgium (1814-2020)
Revista Brasileira de Direito Processual Penal
A história do processo penal da Bélgica está profundamente relacionada à sua herança francesa por meio de seu Code d'instruction criminelle de 1808, ainda em vigor atualmente. A fim de retratar a história moderna do processo penal belga, este artigo visa a enfatizar a evolução das iniciativas de reforma em relação aos aspectos mais simbólicos herdados do processo francês: o próprio Código de 1808, a investigação preliminar focalizada na pessoa do juge d’instruction e a emblemática justiça popular da cour d’assises. Dividida em seis períodos de 1814 a 2020, esta pesquisa histórica abordará e contextualizará questões como a substituição ou a manutenção do Código francês, a melhoria da instruction de acordo com suas principais características napoleônicas ou sua transformação em outro tipo de investigação pré-julgamento, bem como a limitação ou mesmo a abolição da justiça popular.
The Western Codification of Criminal Law: The Myth of its Predominant French Influence Revisited (Aniceto Masferrer, ed.), Dordrecht-Heidelberg-London-New York, Springer (Collection ‘History of Law and Justice’), 2018
Any civil law student knows that most of provisions in any European or Latin American civil code derive from Roman law, that they were the outcome of a long and gradual scholarly elaboration extending from 12th century glossators to the natural lawyers of the 18th century. However, there is no such consensus about criminal law. The civil law tradition has doubtlessly committed more effort to the scholarly development of private law institutions than to those of public law, privileging civil law over criminal law. The main consequences of this fact are twofold: (i) 19th century criminal jurisprudence is sometimes presented as if had arisen out of the blue, or as if institutions contained in the 19th criminal codes broke with the past or bore no traces of Roman law; and (ii) since criminal codes supposedly broke with the past, the extent and scope of foreign influences—and the French in particular—on the criminal codes in Europe and Latin America are overemphasized. The chapter aims at dispelling this common place, and particularly the myth of the overall French influence in Europe and Latin America.
Comparative Legal History: Law and Innovation
PIHLAJAMÄKI, Heikki; NUNES, Diego; DAL RI Jr., Arno (Ed.s). Comparative Legal History: Law and Innovation. Belo Horizonte: Del-Rey, 2024
The present volume is the outcome of an international initiative by UFSC’s (Federal University of Santa Catarina) Ius Commune – History of Legal Culture Research Group, in collaboration with the Universities of Helsinki and Turku. Most of the articles are based on presentations given at the seminar “Law and Modernization: from Colonial Laws of the Early Modern Period to the Technical Revolution (19th–20th Century)”, conducted in conjunction with researchers from Helsinki and Turku Universities on November 17–19, 2021, with support from the Fundação Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES). This selection of articles aims to promote a dialogue between comparative legal history scholars from various European and Brazilian law faculties, and to construct and consolidate this field in Brazil. The dialogue, furthermore, attempts to strengthen the role of legal history in relation to the more technical and dogmatic legal disciplines, and to promote healthy critical distancing from current legal discourse. The organizers wish to discuss the way that modernizing processes have modified the ways of contemplating and dispensing justice through law. Here, we emphasize two standpoints. First, the colonization process made new tools and theories available on the construction of modern law, in which the metropolis-colony relationship must be considered beyond mere subordination. Second, long since and irrevocably, technology has altered the picture of modern law. Economic development and its relationship with environmental challenges constitute a fundamental axis of discussion. By incorporating historical content into legal curricula, academia has fostered the education of critical legal scholars. One of history’s most useful tools, therefore, is comparison, a fundamental analytical resource for modern jurists. For legal practitioners, the ability to contemplate matters through diverse spatial and temporal lenses is of paramount importance. Since the importing of metropolitan legal models into the colonies and the impact of the technological revolution on modern nation states, technological changes have shifted our ways of thinking about our legal systems. This collection of articles offers a comparative and global perspective on law and innovation, which we believe is fundamental in order to broaden Brazilian thinking on legal history. The contributing authors exemplify an approach to law as a cultural, historically localized phenomenon, distinct from approaches that take legal structures as atemporal foundations of society or as automatic reflections on social formations. Lastly, the book highlights contributions by researchers at Ius Commune UFSC, further advancing the debate on the subject through lectures and discussions held during the 2021 event. The opening article consists of a comparative historical analysis by Heikki Pihlajamäki, who argues that private law codification was not as indispensable to nineteenth-century continental legal culture as standard legal histories would have us believe. Indeed, law was modernized at roughly the same time in Western countries that did not codify private law – the common law world and Scandinavia. This suggests a connection between the legal history of regions with and without codification. In this exercise in critical legal history, Pihlajamäki argues that the driving force behind the modernization of Western law has been legal scholarship, not legislators and their codes. The article duly illustrates the relationship between comparative legal history and critical legal history: critical legal history may not be comparative by definition, but in practice it almost always is. Pietro Costa, in his essay, discusses the impact that the thematization of the spatial-temporal dimension has had on historical research, and on legal historiography in particular. The author mobilizes the idea of the “spatial turn”, which led several disciplines of the time to rethink some vital aspects of their frame of reference, such as the notion of space and the relationship between the temporal and spatial dimensions. With this in mind, the author attempts to answer the following questions: What improvements does the concept of ‘spacing history’ offer to the framing and instruments of historical research? How can a better awareness of spatial and temporal coordinates sharpen the cognitive instruments of the historian? In short, the author believes that understanding the concepts of space and time, and the link between them and social process, can contribute to improving historical research. Diego Nunes discusses extradition in Fascist Italy and in the Brazil of Getúlio Vargas to understand whether the institute suffered authoritarian torsions in the domestic law field in these countries, and in the diplomatic relations between them. In Codice Rocco, the provision on extradition was intended to strengthen repression. If the 1938 Brazilian Extradition Act, on one hand, relies on the elements of the institute created in the nineteenth century, the Act also adds important elements to the defense of a strong state. However, the Italian-Brazilian extradition treaty of 1932, attached to the liberal paradigm, ended up protecting the individuals subjected to extradition. In that case, were these rules truly of a fascist origin? Surely “Fascist Criminal Law” did not quite amount to a revolution, since despite introducing major changes, it coexisted with the liberal tradition of criminal law. Reconsidering the relationship between the science of criminal law and penitentiary systems, Jean-Louis Halpérin analyzes the literature on prison innovations during the nineteenth century. Halpérin draws on texts on the penitentiary system produced by specialists across various fields, emphasizing the contribution of criminal law professors to the legal discourse. The article traces a chronological path from the inception of penitentiary knowledge to the science of criminal law in the middle of the nineteenth century, and to the emergence of criminology as a third discipline, associated with the positivist school. According to Halpérin, the debates on the penitentiary system were progressively integrated into penal science, and consistently sought to defend the autonomy and primacy of the science of penal law over sociological, statistical, and medical points of view. In his article, Georges Martyn points out that nineteenth-century Belgium can in many ways be considered a “legal province” of France. According to the tradition of the Exegetical School (École de l’exégèse), legislation is the one and only formal source of law for judicial decisions. This legislation is primarily composed of the Napoleonic codes. Judges seem to be wary of referring to other sources, particularly the supreme court, known as the Cour de cassation. If a “foreign” source is quoted, it is a French one. The scrutiny of various published court sentences confirms what has been written by many Belgian scholars: the Belgian legal culture was part and parcel of the French one, at least until the mid-20th century. After the Second World War, due in part to Belgium’s “de-federalization” and its integration into the European Union, Belgian jurists increasingly turned their attention to other foreign legal systems. They were no longer apprehensive about using other formal sources of the law, such as case law, doctrine and (unwritten) general principles. The establishment of the Council of State and the Constitutional Court in the latter half of the twentieth century contributed to the shift away from France, and the development of a distinct Belgian and Flemish legal culture. In her article, Mia Korpiola examines the extent to which early Finnish automobile regulation was influenced by foreign norms and the channels through which these foreign influences emerged in the 1900s and 1910s. Sources used in the article include local automobile traffic ordinances and their preparatory works, proposals, and impact studies for an aborted nationwide decree on liability in motorized traffic situations, archival material, and newspapers. The author shows how, although Finnish automobile traffic remained only locally regulated until the 1920s, regulation was heavily influenced by foreign norms. When the municipal authorities and committees in Helsinki drafted various proposals for automobile ordinances, they closely followed what was happening abroad. Newspapers, foreign legal literature and trips abroad provided Finns with information on European legal developments regarding the regulation of automobile traffic. Influences came from Germany, England and especially from the Nordic countries, particularly Denmark and Norway. Despite its local application, Finnish municipal automobile regulation is an example of both spontaneous and intentionally organized convergence of traffic norms in early twentieth-century Europe. Airton Ribeiro analyzes the pluricontinental Portuguese judicial administration, characterized by intensive movement of personnel around and between its dominions, forming a global network of rotating judicial posts, where both individuals and their books circulated. The study focuses on the book lists of eleven magistrates appointed to judicial posts in a range of locations throughout Portuguese America between 1799 and 1807. Censorship sources allow us to identify the books that these itinerant magistrates regarded as indispensable for the exercise of their judicial duties. In view of the shipping costs, the weight and, above all, the temporary nature of the functionaries’ posts, the judges established traveling libraries, portable collections of essential professional books. Identifying the books that the judges selected as tools for their overseas judicial activities gives us a good idea of the legal literature available in the final years of the Portuguese Ancien Régime. Ultimately, this investigation sheds light o...