Comparative Legal History: Law and Innovation
Arno Dal Ri Jr.2024, PIHLAJAMÄKI, Heikki; NUNES, Diego; DAL RI Jr., Arno (Ed.s). Comparative Legal History: Law and Innovation. Belo Horizonte: Del-Rey
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 By incorporating historical content into legal curricula, academia has fostered the education of critical legal scholars.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...
