Exploring the Foundations of Legal History

ISSN: 2674-788X

Ph.D in Legal Management (Student)

Marco Túlio Elias Alves

Exploring the Foundations of Legal History

2024

Marco Túlio Elias Alves

Exploring the Foundations of Legal History

2024

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ABSTRACT

This article presents a reflective and structured overview of the foundations of Legal History,
aiming to understand the evolution of law and its relevance in contemporary legal education. Based
on bibliographic research, the study draws primarily from the book Exploring the Foundations
of Legal History, along with complementary works by renowned jurists and historians. The
research explores historical legal systems—from the Code of Hammurabi to Roman Law, Canon
Law, and modern Western legal traditions—highlighting the political, cultural, and philosophical
influences that shaped legal institutions over time. Rather than offering a merely chronological
narrative, the article critically examines how law developed as a social phenomenon in response to
human needs and values. It reflects on the role of historical consciousness in legal interpretation,
demonstrating that justice, legal certainty, and the legitimacy of norms are concepts that evolved
alongside society. The study concludes that Legal History is essential for understanding the roots
of law, informing the development of fairer legal systems, and shaping professionals capable of
critically engaging with legal transformations.

Keywords: Legal History. Bibliographic Research. Legal Systems. Justice. Norms. Education.

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CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 CHAPTER I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Introduction to the history of law . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 The science of legal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Formal sources of legal story . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4 Principles as a source of legal history . . . . . . . . . . . . . . . . . . . . . 11
1.5 The Object of the discipline of legal story . . . . . . . . . . . . . . . . . . . 12
1.6 Object of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.7 The object of history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2 CHAPTER II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 Utility of Legal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.1 The identity of a people . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.2 Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.3 Current Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.4 Collective Memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.1 Moral Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.2 Preventive Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3 The Teaching of Legal History in Brazil . . . . . . . . . . . . . . . . . . . . 20
2.3.1 Prehistory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3.2 Antiquity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3.3 Middle Ages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3.4 Modern Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3.5 Contemporary Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3.6 Teaching the History of Law Abroad (Outside of Brazil) . . . . . . . . . . . 22

3 CHAPTER III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Timeline of legal history . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1.1 When does Law emerge in History? . . . . . . . . . . . . . . . . . . . . . . 24
3.2 Prehistory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.3 Ancient Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3.1 Heliaia Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.4 Figures important in Ancient Greek Law . . . . . . . . . . . . . . . . . . . 29
3.4.1 Sophists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.4.2 Logographers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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3.4.3 Law vsReligion in Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.4.4 Ancient Rome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4.5 Medieval Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.4.5.1 In other words: the Dark Ages . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4.5.2 Canon Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.4.5.3 How did the Inquisition work? . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.4.6 Why does Brazil belong to the Roman-Germanic family of law . . . . . . . 39
3.4.6.1 Law of the Twelve Tables: . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.4.7 Modern Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.4.8 Conquest of American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.4.9 Valladolid Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

4 CHAPTER IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.1 The lines of Law Contemporary Age . . . . . . . . . . . . . . . . . . . . . 49
4.2 The law in the Middle Ages . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.2.1 Germanic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.2.2 Canon Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.2.3 English Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.2.4 American Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.2.4.1 Declaration of Independence and Constitution . . . . . . . . . . . . . . . . 54
4.2.4.2 The United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 54
4.2.4.2.1 The Articles of Confederation . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.2.4.2.2 The Annapolis Convention and the Philadelphia Convention . . . . . . . . . 55
4.2.4.2.3 The Constitution of 1787 . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.2.4.2.4 The Electoral College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.2.4.2.5 Why was the Electoral College created? . . . . . . . . . . . . . . . . . . . . 58
4.2.4.2.6 Criticisms of the Electoral College . . . . . . . . . . . . . . . . . . . . . . 58
4.2.4.2.7 Reforms to the Electoral College . . . . . . . . . . . . . . . . . . . . . . . 58
4.2.4.2.8 The future of the Electoral College . . . . . . . . . . . . . . . . . . . . . . 58

5 CHAPTER V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.1 The history of law in Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . 59
5.1.1 Disorders in the Colonial Period and the Independence of Brazil . . . . . . . 60
5.1.2 The Fall of the Empire and the Constitutions . . . . . . . . . . . . . . . . . 61

Chapter VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
5.2 Law Depicted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
5.2.1 Law in Cinema . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
5.2.2 The link between law and literature . . . . . . . . . . . . . . . . . . . . . . 68
5.3 The importance of legal story for the young jurist . . . . . . . . . . . . . . . 74

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6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

BASED ON THE BOOK ORIGINALLY WRITTEN IN PORTUGUESE . . 78

REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

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INTRODUCTION

Legal History is a field of study that allows us to understand not only the origins of legal
systems but also the historical paths taken by societies in constructing the institutions, norms, and
principles that govern social life. More than a mere chronological account of facts, it provides
a critical interpretation of legal phenomena in light of time, culture, and the ideas that shaped
each era. In this context, the present paper offers an introductory and reflective analysis of the
foundations of Legal History, emphasizing its theoretical, practical, and pedagogical relevance.

The methodology adopted is bibliographic research, grounded in classical and
contemporary works that explore Legal History from various perspectives. This methodological
choice is justified by the theoretical nature of the subject and the necessity of engaging with
authors who have made significant contributions to the area. Bibliographic research enables the
retrieval, organization, and critical comparison of different interpretations of legal development,
offering a broader and interdisciplinary understanding of the subject.

This article takes as its main reference the book Primeiros Passos para Entender a História
do Direito (“First Steps to Understanding Legal History”), originally written in Portuguese
and adapted into English for academic purposes during the doctoral program in Management
(Ph.D.) at the Swiss School of Business and Research. The work is noteworthy for its didactic
and accessible approach to fundamental legal-historical topics, such as the sources of law, the
interaction between law and culture, and the historical landmarks that shaped Western legal
traditions. It also proposes connections between law and other cultural forms, such as literature
and cinema, demonstrating the vitality and transversality of legal-historical studies.

The theoretical foundation also includes the contributions of scholars such as Ricardo
David Rabinovich-Berkman, who highlights the cultural and moral dimensions of historical
narratives, and Maria Helena Diniz, who provides technical and comprehensive definitions of
law as a historical and social phenomenon. Other referenced thinkers—such as Norberto Bobbio,
Miguel Reale, and Rui Barbosa—bring essential insights to understanding legal transformations
in diverse historical contexts. Each author has been carefully selected for their relevance and for
how their perspectives enhance the dynamic and historically situated conception of law.

Building upon this theoretical framework, the article does not aim merely to construct
a historical timeline of legal systems and schools but to reflect on the role of Legal History as
an essential discipline in the ethical and critical formation of legal professionals. By revisiting
institutions such as the Code of Hammurabi, Roman Law, Canon Law, and the structures
of modern legal systems, it seeks to demonstrate how historical knowledge directly informs
contemporary legal debates regarding justice, equality, human rights, and the legitimacy of legal

INTRODUCTION 2

norms.

Ultimately, this article asserts that Legal History should not be regarded as a decorative
or merely introductory subject in the legal curriculum. Rather, it is an indispensable tool for
educating jurists who are aware of the past, engaged in the present, and prepared for future legal
transformations. Historical inquiry does not serve to glorify the past, but to interpret the decisions
that have shaped legal development—its ruptures, continuities, and possibilities for renewal.

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1 CHAPTER I

1.1 Introduction to the history of law

Every society has a set of normative habits that are often considered culture. It is also
possible to observe that this culture carries dozens of regulatory traits because it ends up being
attributed to it the function of determining the existence of norms, measures, models, and values
that legalize behavior patterns for the time.

Every society documented to date, no matter how barbaric its history, has shown efforts
to create a certain level of order in the community, especially through the implementation of
behavioral standardization rules. Thus, it managed to act as an effective social management
system.

The concept of Law, while very basic and easy to understand, already clarifies it that
it is more than a handful of occurrences and notions. It is, first and foremost, a value created
and built in all people, regardless of the way the group decided to organize itself. Law is the
basis for initiating a process of social formation, political structuring, cultural development, and
establishment of the moral and ethical thinking of a people. In other words, it is of enormous
importance for ensuring balanced coexistence in society, as it is responsible for imposing criteria
for changes to be made for evolution.

On the other hand, what we have as History seeks only to observe the transitions, stability,
and instances through which peoples have passed over time. As mentioned earlier, it is observed
that each group elects its model of legal system—suitable for the time—which will inform
historians of the level of progress and depth that this group has. Although obvious, a more
technical evaluation will always be necessary regarding the points that constitute the chosen
model.

The study of the connection between History and Law aims to achieve an understanding
of historicity, that is, the trajectory and all the impacts suffered by Law in its evolutionary and
historical course. This means that the goal is to find out where each people’s convictions about
Law came from at that time, which group began the creation of institutions and behavioral rules or
those that guaranteed the control of society, for example. To find these answers, it is necessary to
start from an interdisciplinary analysis, considering sources such as economics, culture, politics,
etc. The results of this study promote a more dynamic and colorful view of our legal system.

That is why the History of Law, as a science and discipline, comes much closer to what we
have as zetetic interpretation, that is, an investigative thinking that prioritizes the act of knowing,

Chapter 1. CHAPTER I 4

seeking to recreate laws, facts, and the judiciary in a given historical-social context.

1.2 The science of legal law

The first curiosity of history is that it arises precisely from the interest in knowing more
about the past, as only as is it possible to find answers to various doubts that unsettle us in the
present. In the context of this book, this search is summarized in an investigation to understand
the elementary steps traced by legal science, from its beginnings to the present day.

I find it valid to emphasize that two or more sciences are necessary, complementary, to
understand the richness and details of the History of Law—I speak of the records found through
History itself and the methods that are characteristic of the science of Law. Some say that these
two areas, when simultaneously in action, give rise to the independent study we call History of
Law, which provides the basis and resources for the discipline of the Law course, which has the
same name.

At first, the term History does not have a single definition—far from it. Despite the
traditional and almost universal concept, the word can also refer to a plurality of methodologies,
beliefs, and mechanisms. However, it is mainly related to events and the study of events, as well
as analyses made of the past and progress made so far. Regardless of which conception better
fits the context, what is known is that, although History exists for itself, the act of historicizing
results from a demand of the human being.

We need to explain to others and to ourselves the reasons behind things, as well as their
origins. We may be talking about the existence of fire or our institutions, and why not, also our
values. Anyone who thinks this search is easily given is mistaken, as understanding the original
message—which often gets lost and, almost absolutely, changes in the process of transmission
from generation to generation—is a daunting task, especially because it is significant. It’s like that
very typical childhood game, which I’m sure everyone knows: the famous “Chinese whispers.”
In it, the message, as it passes from one ear to another, always ends up different in the end.

There was a strong belief, still nurtured today, that this problem was restricted to oral
communication. However, there are several historians who maintain that writing also has the
same weakness. But it is evident that we must recognize that orality is much more vulnerable
in this sense. Therefore, it is more prone to almost instantaneous changes, especially because
it is susceptible to alterations in its composition, since languages can die and translations can
contain troubled views and nothing faithful to the original content, and end up promoting bad
interpretations of all kinds.

Do you perceive the complexity?

Chapter 1. CHAPTER I 5

The historical research process still needs to deal with non-linearity, as it is not limited by
chronological time, since the researcher faces advances, deviations, alterations, comings and
goings all the time. That is why, nowadays, the investigator needs to focus on a specific moment.
In other words, delimitation is necessary so that he can work on an object or a context fixed in
time and space.

This is just one way to present how complex the task of the researcher is when trying to
understand the original message without, however, having the whole journey to consider. That is
why History as a science uses a basic method, structured in three elements:

1) the desire to reconstruct the human past;

2) in-depth and detailed research; and

3) criticism.

The first element must refrain from any prejudice, as it’s impossible to underestimate the
existence of mystical phenomena, gods, or creatures, since even though they’re considered myths
today, they were considered true at a given historical moment.

Therefore, they influenced how things unfolded. It shouldn’t be considered a lack of
criteria or scientific rigor for the researcher to consider extraordinary elements to justify or work
on current beliefs.

The second listed element may be the most relevant, leading the scientist to seek reliable
sources for conducting their research.

This is another point where prejudice should not prevail, as it is necessary to explore and
make use of both oral traditions and stories, as well as newspapers, clippings, and previously
formulated research.

Criticism, the third element, is crucial.

One should not ignore the extraordinary or dismiss it because it does not agree or see
truth in it. This is why criticism is so important: it’s through it that we understand that history
was made based on truths, even if these “truths” later prove to be false[1].

Ricardo David Rabinovich-Berkman, in his work “Un Viaje por La Historia del Derecho,“
brings the example of the Epic[2]:

Chapter 1. CHAPTER I 6

When the Sumerians wrote “The Epic of Gilgamesh,” they sought to trace the past of their civilization, just
like the Saxon bards who composed the poem “Beowulf,” a model of high medieval epic literature.

This way of understanding the past requires the ability to interpret the accounts and
results of research, as well as the ability to interpret the beliefs of those who lived them and
nurtured them at the exact moment of that experience. I venture to say that it requires a kind of
anachronistic[3] reasons.

With this introduction to the discipline of History, it is also necessary to present Law.
Although I do not intend to delve into definitions in isolation, I believe it would not be fair to
the reader, after some remarks about the context of History as an autonomous science with
well-defined objectives, to simply state that the same methods would be applied to the analysis of
Law. This would also not be true.

Among the profound concepts created for Law, those that seem most complete to me are
precisely those that sound simplest.

Once, in one of those basic bars, located in a small town where I stopped during a trip, I
heard from a 98-year-old lady—but who, even so, did not give up eating pork cracklings and
drinking cachaça—that Law was the same as justice. Some people argue that such words, in
appropriate contexts, could even be synonymous. Yes, maybe. Always? Unfortunately, no.

I wanted to know a little more, so I asked her, without much pretense, what justice would
be. She replied: “Well, my son! Justice is paying what you owe and receiving what you are
entitled to”.

Her answer made me think a lot about that definition, as it seemed appropriate to many
situations. But Plato disagrees.

In his dialogue in “The Republic,” he questions whether justice is linked to giving each
one what is rightfully theirs. Consider this situation: if a friend asks you to keep a weapon and,
later, with discernment affected by some mental problem, crazed, asks you to return the weapon,
would it be just to return it? It seems to me that it would be irresponsible.

The role of the historian of Law is to understand the differences in interpreting norms
according to each historical context. In Plato’s time, it was common to carry weapons, and
nowadays, it is not common, at least not in Brazil. Most likely, this question would not even have
crossed the minds of contemporaries to be analyzed.

The fact is: Law is also an autonomous science that regulates human, social, and
patrimonial relations to make common living possible. And it is precisely how this happened at

Chapter 1. CHAPTER I 7

each moment in history that is so intriguing.

There was a time, not so long ago, when “justice” was done in the name of God. Emissaries
of some religions, especially the Catholic religion in the West, about which we will talk later,
executed countless people for crimes of witchcraft and sorcery—often without evidence—or for
not sharing faith in the same god. It seems abominable to think of something like that happening
today, but everything that happened was plausible and represented the idea of justice that society
had at that historical moment. It wasn’t barbaric. It was normal.

Understanding the evolution of society and its customs helps to understand the ideals
of justice, leading to a more profound understanding of Law. Hence, arises the need for the
autonomous discipline of Legal History. We live in a time of constant specialization.

I believe it’s no more than 15 or 20 years ago that simply completing a higher education
degree in Law or Medicine, for example, was enough for professional success. A professional
technical course in accounting was enough to be considered a promising professional. And
today? The end of higher education is just the first step in an almost endless journey of seeking
knowledge, as there is still much to discover and learn.

The responsible researchers also felt restlessness in the past and used this curiosity to
seek answers to their questions. The product of these investigations underwent adaptations and
improvements until it became a noteworthy material.

With History and Law, it was no different.

The need to deepen knowledge led these two very particular elements to merge, to create
an autonomous and highly specialized discipline. This discipline is not only focused on devoting
itself to History or Law, but rather to this trajectory that led Law to become what it is today.

“Few realities hit our existence as hard as the passage of time”[4]. Time is a constant that
determines the function of human existence in a given context. It is because of it that abilities are
attributed to people in most cultures. We see this in Brazil. Here, after 18 years of a person’s
life, legal capacity (majority) is already guaranteed in regular cases. The simple passage of time
grants legal capacity to individuals.

It is also because of time that countless plans are made. Look at the school year, for
example. It is marked as the necessary and sufficient period for acquiring a certain amount of
knowledge, limiting man in his existence. Other examples can be found in our everyday speech:
“I’ll start that diet next week,” “I’ll learn a new language from next year”.

In an inversely proportional relationship, we attract desire—or lack of desire—for the

Chapter 1. CHAPTER I 8

passage of time. The younger one is, the more they expect temporal speed to achieve simple
things like getting a driver’s license, staying out overnight, or even being able to provide for their
livelihood. However, the older we get, the less we want to find the end of our existence. So, we
pray for slower days.

The fact is: time is laden with cultural dogmas typical of each historical period. If we
observe, it carries a bit of the culture of each historical period that is different enough from each
other to interfere with legal relations.

The relationship between time and Law can be called historicity.

As an example of this, let’s see what the wording of Article 213 of the Brazilian Penal
Code said before the current wording given by Law No. 12.015/09, regarding the crime of rape:

Article 213 — To coerce a woman into sexual intercourse, through violence or serious threat:
Penalty — imprisonment from three to eight years.

Compare this passage with the current text, which stems from Law No. 12.105/09,
presented below:

Article 213 — To compel someone, through violence or serious threat, to have sexual intercourse or to
perform or allow another lewd act with them: (Text given by Law No. 12.015, of 2009)
Penalty — imprisonment from 6 (six) to 10 (ten) years. (Text given by Law No. 12.015, of 2009)

The first perception of the reader is certainly the alteration of the concept of victim, as
previously only women could be victims, in the biological sense of the word. In the context of
1941, from the analysis of the text, it is presumed that women were considered more fragile
beings deserving of special legislative protection. It is also possible to presume that men were
perhaps too self-sufficient to be vulnerable enough to suffer sexual crimes.

A growing movement advocating for gender equality has made a positive impact recently.
Women can also be active agents in a sexual crime. And I say this because I have seen some
convictions, for example, of female teachers who sexually abused their students. In the context
of equality, men can also be the passive subject of a sexual crime, no longer being legally
self-sufficient[5].

The second change that is noticed is the broadening of the concept of rape. If before it
was solely “sexual intercourse,” that is, through penetration of the penis into the vagina, it now
includes “sexual intercourse or other lewd act.” And if before the crime was only committing the
act, now it is also a crime to allow the act to occur.

Chapter 1. CHAPTER I 9

From the second change perceived, it can be deduced that the context of sexual crimes
has evolved between 1941 and 2009. If before, in 1941, the perceived offense was penetration
through violence or serious threat, society has now recognized other crimes related to sexual
freedom that are also reprehensible but were not covered by the concept of rape.

If, since that time, the practice of rape was already punishable, permission or omission
also became criminalized, as in cases where mothers allow their children to be molested by
their husbands or fail to report the crimes when they become aware of them. Now they are also
punished for omission and complicity.

Society has changed, so the law had to keep up.

Just by examining legislative changes, it was possible to perceive historical phenomena
related to sexual crimes between 1941 and 2009. Here lies the importance of understanding the
History of Law because through it, it is possible to better understand the current effects, products
of so many changes.

Understanding history then amounts to a kind of justification process for the present in
relation to the past. It is also worth noting that the History of Law is not — and never will be
— a mere narrative of events, and should be seen and interpreted as a process of reflection and
profound understanding of all reality.

In other words, the History of Law will not be limited to conducting an inventory. It was
not created to solve the historical problems of institutes that were effective in the past — or that
are in the present — but it will delve into its goal of expanding a path trodden by jurists and by
curious individuals seeking to understand the essence of law.

1.3 Formal sources of legal story

The fact is that this grouping of norms guaranteeing the rights of a person was not created
all at once, nor by societies that were coexisting at the same time. It is taken for granted that
these normative elements are, in fact, the product of social progress dating back centuries.

The sources of law — an expression that defines the points of formation of legal rules —
are essential for the historian to have in hand the pieces of the puzzle that allow for a thorough
analysis, both from a subjective and a more objective perspective, of this legal and social
phenomenon that has resisted changes in the past.

Among the main sources, four are chosen as the greatest examples to represent what the
law encompasses and what it is, especially because all these sources can be seen in the records

Chapter 1. CHAPTER I 10

of most societies found in the West. These sources were — and still are — fundamental for the
organization of the system.

We are, of course, referring to:

1) Law;

2) Customs;

3) Doctrine; and

4) Jurisprudence.

The young jurist, just by glancing, knows that these are the sources that have the most
effect when used — in a more direct way — in the creation and reform of the law. It is also
possible to perceive that they are not listed randomly, as Customs and Law are considered primary
sources, while Jurisprudence and Doctrine operate as additional — albeit formal — sources. This
also means that they are only used in contexts where gaps are identified in the rules established by
the Law or in the precepts left by Custom. In any case, many agree that it is crucial to understand
the dimension and scope of each of these sources for the study of Legal History to be carried out
with mastery.

The first formal source of Law, as I have mentioned before, is the Law. What can we say
about it? Firstly, it is considered the source that inspired the models of the constitution of dozens
of legal systems, regardless of the historical moment. Although the nomenclature refers to only
one of the various types of normative actions created by the State, in terms of sources, the word
encompasses all the patterns and regulatory categories found in a State.

These Laws we speak of have a fundamental trait of intentionality. This means that they
are produced with a very specific goal but with broader application. It is no coincidence that the
origins of subjectivity and common ground are maintained in their conception, after all, this is
what allows their survival among generations.

The second formal source we will discuss is Customs. They should also be treated as an
element of enormous relevance to Law, composed of a cluster of habits and practices — albeit of
a legal nature — authenticated by a specific people. Moreover, they quickly gain coercive force
through reproduction and constant repetition in public acts over a relatively long period.

These Customs act as auxiliaries in the so-called positive Law and are the formal
representative of tacit popular consensus and the presumption of the citizen’s will. This, of course,
requires the process of social legitimation for its form. The formal legal source is a customary

Chapter 1. CHAPTER I 11

practice — as the customary norm, as some authors have adopted — and a form of judicial
manifestation that does not produce Law alone; however, it is nevertheless one of the ways in
which it is expressed.

The third formal source addressed is Doctrine. We can even say that it — among all
others — is the one that most assists in the creation and manifestation of Law, especially because
it is constituted by the practice of jurists. And this happens in various ways: it can be through
opinions, through the knowledge passed from a teacher to a student, or through the arguments
given by treatise writers who dominate certain theories and conceptions.

The fourth formal source will be Jurisprudence, of great importance for understanding
much of the current legal systems. This is the term used to refer to a range of rules taken from
judicial resolutions given in the conclusion of specific cases.

Jurisprudence is not characterized as a general source of Law, like Laws and Customs
that affect everyone. It is considered a mandatory tool for the preservation and fostering of Law,
especially because it is responsible for ensuring another value, as essential as Jurisprudence itself,
for the understanding of the legal phenomenon, namely, legal certainty.

I think it is worth mentioning that Jurisprudence acts as an intermediary for this legal
certainty, operating in the system as a representative of a form of legal interpretation with which
society is already familiar. This, consequently, creates greater stability, lending a higher level of
credibility to the legal system.

1.4 Principles as a source of legal history

Principles are the source of Law. They bring elements that support the legal system to the
point that even when there is a lack of rules or legal protection, the intended protection remains
secure. As an example, I can mention the principle of human dignity. Even if there are no laws
obliging me to live well with my friends, relatives, or neighbors, it is normal for me to treat them
with dignity and respect.

I can also mention another example: if there is a country where I can kill someone without
penalty, it does not mean that I will necessarily go to that place to commit murder, as there are
principles involving the protection of life that are independent of laws. Every law that violates
the principle of life causes controversy, such as the death penalty, abortion, or police lethality.

However, despite assuming that principles are a source of Law, I am unsure whether they
are equally a source of Legal History since, in this context, we do not intend to evaluate how these
elements had greater or lesser legal weight, except through the interpretation of Laws, Customs,

Chapter 1. CHAPTER I 12

Doctrines, and Jurisprudence that are documented. I think that principles have provided support
to the formal sources we use to study Legal History, but that does not make them part of the
group.

1.5 The Object of the discipline of legal story

As seen here, the object of study of Legal History is, in summary, Law. Yes, it’s that
simple. This means that the researcher, student, or historian has the duty to narrate, detail, and
discuss what actually prevailed as Law in society, not getting caught up in details like “which
Law should have been consolidated at a given moment or in a specific place.” Legal history aims
to reconstruct the steps taken, the measures taken, and the legal orders that prevailed in the past,
that is, the institutions of all kinds and the sources of current Law.

This means that, in general, both the historian and the student of this discipline will
analyze only three fundamental objects, namely:

• Sources: Individuals should seek to study and explain what were the main origins of law.
In other words, what were the customs of the time that gave rise to it? What were the oral
laws that were in force at that time? It is also necessary to study how jurisprudence was
in various periods and civilizations throughout history.

• Legal culture: Researchers should also seek to understand the legal ideas present during
the historical moments for which we have records, to determine if they were related to
other practices, such as politics and religion.

• Legal institutions: Individuals should also seek to understand in which environments
law was created, what were the needs of the society that gave rise to it, as well as what
problems it solved over the generations.

The main goal of History, since ancient times, has always been to provide man with
causes and explanations in response to the numerous existing inquiries, which questioned even
their origins, such as those related to the evolution of their species. History, above all, is the
record of man and humanity’s passage through Earth. Therefore, it is also the narrative of the
process of creation and evolution of societies. That is, history boils down to a set of events that
occurred in the past and that continue to unfold at every moment. Hence, its objective is to record
and provide this information for the investigation of these occurrences.

The History of Law, although based on the research and documentation of rights and duties
that emerged in less developed civilizations until evolving into what we have today, ultimately

Chapter 1. CHAPTER I 13

enriches our understanding of the Law. This knowledge also increases our understanding of
current problems and enables us to create alternatives and solutions.

Scholars in this field analyze how doctrines, ideas, and institutions have changed over
time, to explore how they are formed and shaped by social, cultural, political, and economic
contexts. These legal historians are guided by figures such as judges and legislators, but also
listen to the common people of the past, as they are the ones who give voice to those ideas of
what the law is or should be.

1.6 Object of Law

Current Law maintains society in harmony. It establishes behaviors and examples that must
be reproduced by man, as this prevents the ego—and the idea of selfishness—from interfering
with the coexistence among community members.

Therefore, if we allow ourselves to question, perhaps the main object of Law is the legal
phenomenon. The word Law refers to both legal science and its object, causing confusion between
cause and purpose. It is important to emphasize that a phenomenon is something we can perceive
through our senses and understand through the use of intelligence.

When phenomena produce effects in the universe of Law, we can call them legal
phenomena. An example of this is nature: the wind passing through a tree is an event perceptible
to the senses, so it is a simple phenomenon. However, if the wind, passing through a tree planted
and developed on my property, knocks it down onto the car owned by another person, a duty of
reparation may arise from there, in a certain context. Therefore, the event capable of generating
rights and obligations is called a legal phenomenon.

Law is constantly being created and experienced by the individual since its emergence in
the early days of history. This leads us to conclude that it is connected to the History of Law
since everything that man has done in a community is connected to Law or, at least, is carried out
through some considered legal frameworks. It is a value created—in the manner of the place—in
each society, regardless of the form of organization that the people have chosen to develop or
adopt. It is the one that ensures that there will be order and space for civilizations to expand
and evolve, both quantitatively and in technology and social body. That is, Law aims to ensure
that people live in harmony, even if there are conflicts, disagreements, and different objectives.
Therefore:

[. . . ] Law is a vital experience; it is a sum of acts that generations go through, one after another, all driven
by the ideal of what we call just. Well, to this historical experience, which materializes over time, to the
social fact that progresses or regresses assuming quite diverse physiognomies and aspects, varying from
place to place, from time to time, and expressing itself in systems of positive norms, we give the name Law.

Chapter 1. CHAPTER I 14

(REALE, 1956)

Take a moment to think about it.

1.7 The object of history

We already have enough inputs to question what is the role of History as a science. The
answer is directly linked to the decision of what to investigate and what not to investigate. The
purpose of History is primarily to help a community understand the present in ways that guide
this group towards the future. By analyzing how things happened in the past, individuals end
up knowing and understanding the reasons behind the facts, as well as better understanding the
circumstances they encounter today — which are products of these occurrences.

This science examines the most remote legal principles to understand current guidelines.
If there is a more accurate definition than this, I am unaware of it. Read on:

The History of Law studies, chronologically, the Law as an empirical and social fact,
resulting from human interaction, emphasizing its peculiar characteristics, the causes, or motives
of its mutations or transformations, involving the legal experience of the past, seeking to
individualize the facts and integrate them into a general sense, by adhering to the evolution of
the sources of Law (formal sources, comprising legislation, legal custom, case law, doctrine,
bargaining power, and normative power of social groups, and material sources, comprising social
reality and values synthesized in the broad concept of justice), to the legal development of a
certain people, to the evolution of a specific branch of Law (history of civil, criminal law, etc.),
or of a legal institution (history of property, marriage, etc.), showing its temporal projection in
connection with the theories on which they are based. (Diniz, 2006)

You will notice that History is used differently depending on the content of the discipline
discussing the science of Law. Why? Well, in those subjects with a more professionalizing or
dogmatic structure (if you prefer), the lecturer will focus on the changes and evolutions that the
rules and institutions underwent to evolve and reach what we have in the current system.

Want an example to make this clearer? When studying Labor Law, for example, it will
be possible to perceive that the role of History in that context is to point out and explain all the
progress, as well as all the development of protective norms covering the professional.

On the other hand, in zetetic disciplines, where the concern is to inquire, give voice to
doubts, and strive to find these answers, the History of Law will be fundamental to providing
a basis for critical thinking about every legal phenomenon initiated even before people knew
what it was, demonstrating its variability and correlation with the social environment. It can also

Chapter 1. CHAPTER I 15

provide some foundation for the sociology of study, as well as allow the study of philosophical
renewals of Law if the lecturer so desires.

Some of them will prefer to teach the subject with epistemology:

[. . . ] Law is not just a set of rules. It is much more than that. Written rules (laws) are one of the instruments
of application and operation of Law, which make use of other components in their configuration. Thus,
alongside laws, we have doctrine, case law, customs, general principles, which, together, compose the
concept of Law. And these elements, together, when applied, seek to achieve the supreme ideal, which is
the attainment of justice.” (PEDROSA, 2006)

This means that it is totally relevant to analyze Law as much more than a pile of orders or
principles that seem to have accompanied humans, at different levels of applicability, from their
creation until the moment of suffering. Thus, it is possible to reflect on how each civilization
formulated its guidelines based on its traditions, the historical moment, and its culture.

16

2 CHAPTER II

2.1 Utility of Legal History

We already know that History, in itself, is all that knowledge and study about the past. It is
a collection of memories and facts; it is the entire chronology of lived moments, as well as a form
of collective memory. History is primarily the narrative of where we came from and who we are.

However, it can also be a powerful way to reveal where we are going. But why study the
past? What is the need to seek what has already passed?

Learning about History is essential for us to understand the world around us. After all,
everything has its trajectory. You will find the History of Medicine, Music, Architecture, Art,
and various other fields, as it is necessary to investigate their emergence and development to
understand how these areas are or to try to measure the potential of each one.

History is an important tool to understand, for example:

2.1.1 The identity of a people

Do you think it is for no reason that the discipline of History is still taught in schools?
It is essential for us to form a sense of identity, and it is through its study and the research of
historians that we can understand how countries and civilizations were created, developed, and
what influences they suffered over time.

2.1.2 Society

If we are honest, we will admit that the changes that are happening right now go unnoticed
to our eyes, as we are too busy to pay attention. It is much easier to observe the past, since there
is a chronological order of events that allows you to study each point in detail. But, at this very
moment, there are professionals studying and documenting everything around us, so that future
generations understand how people and society from a previous era behaved, as well as what led
them to act as they did. We do the same today when looking to the past, as History provides us
with much of the information used to create laws and legal precedents that help develop Law as a
social science.

2.1.3 Current Affairs

If we really need to understand why something happened, regardless of the area or field
where change occurred, we have to look for events that happened earlier. Take, for example,

Chapter 2. CHAPTER II 17

the search for an explanation for the fact that one political party emerged victorious in the last
election while the other did not; or the drastic increase in prices of services and food; or a disease
eradicated many years ago, reappearing in sick individuals; or, going back a little further in time,
how the power that Hitler exerted over his people for so long still impacts the lives of Germans.

It is only through the study of history that we can see and understand the reasons that led
us to experience all these changes. Therefore, it is essential to understand which elements of an
institution or society remain regardless of changes.

2.1.4 Collective Memory

The idea of history as collective memory comes from the thought of preservation, of
making people or moments immortal by perpetuating a name, an achievement, or facts involving
a group of people, keeping these events alive in collective memory. For this, this information is
usually passed from person to person within the same group.

Using a simple and elementary concept that can be found in places like the famous
Wikipedia, we have that “collective memory is the memory of a group of people, typically passed
from one generation to the next, shared by a family, religious group, ethnic group, social class,
or nation.” Recent studies depict collective memory as a culturally rich source for preserving
history.

However, this resource is not always reliable. We can cite Jesus Christ himself and beliefs
about his birth as an example. Collective memory leads us to believe that he was born in the year
zero, marking the beginning of the AD era (Anno Domini). However, history has confirmed that
he was born between 4 and 6 BC (Before Christ). Therefore, be cautious when using collective
memory as a source for investigation.

2.2 Science

2.2.1 Moral Science

History has been—and still is—used to define socially accepted behaviors as right or
wrong—“as charitable as Jesus,” “as bloodthirsty as Hitler.” But don’t think that the issue is so
superficial that it can be understood with a single sentence.

There is a clear relationship between law and morality in common sense. Generally, when
applying legal rules, it must be understood that a just act is taking place, at least most of the time,
and that one is acting in accordance with good customs. However, introductory legal sciences
have already shown that what we have is not always law, but morality.

Chapter 2. CHAPTER II 18

According to Ricardo David Rabinovich-Berkman, in his aforementioned work[6], the
historian has become, in the performance of his functions, a defender of morality. Thus, he can be
designated as a moralist. As an example, the author brings some biographies written by Plutarch
(c. 46 to c. 119), in which he assays the deeds of great men, analyzing them and pointing out
teachings that could influence the life and conduct of the reader.

In Western Christian culture, there is no better example than Christianity itself. The Bible,
regardless of the context or religious preference of the agent, is a rich work in which many deeds
have been perpetuated through collective memory, at least until they could be effectively written
down. It narrates passages that end up guiding the moral conduct of various groups of believers.

2.2.2 Preventive Science

The tool of history as a more easily understandable science is undoubtedly prevention. To
assert this, we start from the simplest premise: knowing the acts and facts of a certain context
allows us to prevent them.

In other words, history enables us to access a wealth of information that not only provides
us with data but also the consequences of the applicability of any measure or action. Therefore,
we can reflect on how advantageous or disastrous “that was.” Faced with the results of these
observations, we will see if those are examples to be followed—even if adapted—or if we need
to take specific measures to prevent any of that from happening again in the present and future.

Is it clear how history provides clarifications and guidance that we couldn’t obtain
otherwise? That’s why the History of Law, as a science and discipline, has gained ground in the
study of academics and in university curricula worldwide. After all, this branch of knowledge
conducts a thorough investigation into the legal phenomenon that encompasses the birth, fall,
rebirth, and influences suffered by cultures when law became part of the reality of many peoples.

All this refutes the argument, used by some at the beginning of the implementation of
the discipline, that dedicating oneself to the study in question was a waste of time, especially
because it was noticed that many aspiring jurists—upon reaching university—felt the lack of
something to complement their learning.

Law, indeed, is something very complex and ancient. It has undergone changes and
adaptations to become the object of study for many and the working tool for some. It makes sense
for everyone delving into this field of study to ask, “where did this come from?” or “why is that
so and not otherwise?” These and other questions are relevant.

They need to be answered, theorized, and discussed. Thus, the discipline is created based

Chapter 2. CHAPTER II 19

on studies by historians, jurists, and philosophers, from a historical survey of the path that law
has followed to the present day.

When does the History of Law arise as a discipline?

It is known that when we have access to the causes responsible for the emergence of a
law or institution, the necessary learning for mastering that subject becomes infinitely easier.
Hence, the justification for adapting these studies to teaching methodologies so that the subject
that initially seemed unnecessary in universities could be created.

But times have changed, and the History of Law has become a subject that is now being
demanded as a compulsory curricular component in law courses in Brazil and worldwide, very
different from what I observed in the past. This is happening because its content has become
fundamental for the complete training of future jurists, as the topics covered have become
considered essential in the teaching of law courses.

Regarding the discipline of the History of Law, Azevedo (2005) says:

É tanto uma ciência histórica quanto jurídica; em face desta dualidade, sua área de atuação não se restringe
a limites rígidos ou previamente direcionados; já que não se conforma com a mera descrição dos fenômenos
jurídicos, deve compreendê-los e explicá-los desde o momento em que se sucederam, como na sequência
temporal na qual persistiram sobrevivendo ou deixando de existir.

Translating: “It is both a historical and legal science; in light of this duality, its scope
of action is not restricted to rigid or previously directed limits; since it does not conform to the
mere description of legal phenomena, it must understand and explain them from the moment
they occurred, as in the temporal sequence in which they persisted surviving or ceasing to exist”.

Your statements are based on the belief that an individual who wishes to dedicate
themselves to the learning and constant study of Law to master it for professional use should not
limit themselves to reading legal texts only to apply these legal guidelines mechanically. After all,
factual cases will require much more than that to be addressed.

Experience must be gained, tact must be possessed, the ability to interpret situations must
be learned, ideas must be formed, and contexts must be understood. All of this can be extracted
from the History of Law, as it proves, through it, that the set of legal norms did not emerge
overnight or “out of nowhere.” On the contrary, Law has always been linked to the various
behaviors and procedures found in all periods.

The study of Legal History was conceived in Brazil through universities, specifically
in São Paulo and Recife. Both institutions were created shortly after Independence, and it was
during this period that the first and most relevant Brazilian codes, such as the Criminal Code of

Chapter 2. CHAPTER II 20

1830, were developed. However, even though the discipline had been created, it did not have a
seat in the institutions.

Personally, I didn’t even have this subject when I studied Law between 2001 and 2005,
but I studied two semesters of Roman Law, which was essential for my education. I only came
into contact with it in postgraduate courses. And it was the icing on the cake.

It is worth noting that studies based on the opinions of Rui Barbosa, who during the
Brazilian Empire advocated for a drastic change in education, already suggested the
implementation of “National Legal History” in Higher Education. This discipline encompassed
the history of documents, the origin of decisions, and the development of various institutions in
Brazil.

Subsequently, several other attempts to add Legal History as a discipline in Law courses
were recorded, but it only became a reality through Ordinance No. 1,886, of December 30, 1994.
It began to determine the curriculum guidelines, as well as the minimum content required for the
legal course.

If I am here to discuss the subject, I can affirm that this was one of the best decisions
made. The interest of the students is visible, as is the value that the teachers now give to this
not-so-new science of Law.

2.3 The Teaching of Legal History in Brazil

Henri de Page, cited by Gilissen (2008) in his work “Historical Introduction to Law,”
refers to Legal History as:

(. . . ) often treated with a condescending disdain by those who consider themselves concerned only with
positive law. Jurists who take an interest in it, almost always at the expense of very long and laborious
investigations, are often accused of pedantry. . . An appreciation of this kind does not benefit those who
formulate it. The further we progress in Civil Law, the more we realize that History, much more than logic
or theory, is the only one capable of explaining what our institutions are and why they are what they are
(PAGE, 1942, p. 806; GILISSEM, 1979, p. 13).[7]

We know that this view has been broken over the years, as if we consult Resolution
CNE/CES No. 9, of September 29, 2004 (Brazil), we will see that it established the National
Curricular Guidelines for the Undergraduate Law Course at that time. If we delve deeper, we will
see, in its article 5, the emphasis on the relevance of historical studies.

This occurs when the Resolution determines History—by itself—as one of the fundamental
contents for the acquisition of legal knowledge in the Fundamental Formation Axis, whose main
goal is to include the student in the legal field. The statement also emphasizes the relationships

Chapter 2. CHAPTER II 21

of Law with other areas, such as Psychology, Ethics, and Philosophy. Therefore, these areas are
also fundamental for success.

Currently, the History of Law is part of the curriculum of dozens of institutions that offer
specialized Higher Education in Law. It can be found as a mandatory, complementary discipline,
or as part of a specific and basic subject for the introduction of the course. Of course, each
university and professor can modify and adapt how these studies will be conducted, but usually,
it follows a chronology, namely:

2.3.1 Prehistory

Here the beginnings are discussed, almost literally. It is about that period characterized by
primitive peoples who evolved for thousands of years until they invented writing because from
this milestone it becomes possible to record occurrences, discoveries, and experiences for history
to be documented.

It is in this context that the agrarian peoples are approached and studied, for example.
The famous “peoples without writing” who are normally represented by the cavemen who lived
millennia before Christ or by the indigenous people who did not have access to an alphabet or
something similar until they were colonized. However, this characteristic can still be used to
define—in part—current tribes that do not have the desire to “contaminate” themselves with the
white man.

2.3.2 Antiquity

According to some, it is basically the period in which everything we can call civilized was
born, compared to a preceding period. Antiquity can date back to 476 AD, when the great Western
Roman Empire fell. It is also here that some in-depth discussions are held, followed by studies
on ancient Rome and Ancient Greece: two significant periods for students to understand where
many peculiar characteristics of Contemporary Law came from, as well as what underpinned
some laws. After all, a group of laws originated from the beliefs of these peoples.

2.3.3 Middle Ages

At that moment, Roman Law is deepened, as it was essentially the most practiced during
the Middle Ages. This historical cut provides an enormous wealth of knowledge to the student
because it is here that they have a more direct contact with the models of courts and trials, with
the types of lawyers of the time, and what motivated them. Moreover, it is possible to delve into
how these individuals worked for the people, among other truly fascinating details. This is a
period worldwide, marked by the fall of Constantinople.

Chapter 2. CHAPTER II 22

2.3.4 Modern Age

This is the historical period where feudalism gives way, being gradually replaced by
mercantilism. Like the others, it was a time marked by several relevant transformations, including
for Law. All this idea of “modern age” is nothing more than a product of the Renaissance view
that sought at all costs to create a separation from medieval thought. It is also in this period that
the Late Middle Ages was created, a moment—lasting centuries—that was marked by advances
in agricultural technology, as well as the emergence of new political forms to govern.

2.3.5 Contemporary Age

It is precisely the one that began with the French Revolution and has lasted until now.
In the face of the progress of these revolutionaries, a text was produced and implemented as a
declaration of the Rights of Man and of the Citizen. This content listed all the rights of the citizen
that were valid regardless of gender or nationality. There was also the creation and addition
of civil marriage to the code, for example. This happened because society—especially those
involved in the legal area—sought ways to reduce the level of power that the Catholic Church
still had over the people. A few years after its founding, the United Nations (UN) announced
the highly important Universal Declaration of Human Rights, which was deeply motivated and
influenced by the Declaration of the Rights of Man and of the Citizen created by France back
then. This document, produced following all the barbarities seen during World War II, did not
carry any legally binding legitimacy, but it is undeniable that it became an important benchmark
for the ethical behavior of the entire world. Much has happened and continues to happen since
then.

The discipline seeks, in a simplified yet objective way, to demonstrate that Law shares its
origin with civilization. In other words, it is not only linked to writing, as many scholars and
writers like to claim. Law was born and expanded with the history of society, but in a different
guise. It was considered cultural elements and habits that, over time, became requirements. All of
this became necessary and perceived when communities realized that something was needed to
maintain order in public behavior and in the relationships between each other. That was how rules
of conduct emerged. Law, at that given moment, was mainly aimed at controlling the actions of
individuals because that was essential to preserve balance and harmony between interactions and
relationships established at the time.

2.3.6 Teaching the History of Law Abroad (Outside of Brazil)

Somewhat different from Brazil, which began to accept science as a subject of Higher
Education about two centuries ago, the History of Law is taught as a compulsory subject in most
Law universities in countries belonging to the Roman-Germanic family.

Chapter 2. CHAPTER II 23

In Spain, for example, a Law school in Madrid has a very detailed program, which
gives the concept of the discipline and covers from the primitive and medieval rights of the
kingdoms—which built the nation—to the Law observed in today’s society.

In other schools, this discipline may appear as the structure and evolution of Spanish Law
or even as the History of Legislation. However, regardless of the nomenclature it receives, the
fact is that students always have access to the origin and trajectory of Law in their country.

In the case of Austria, the most recognized universities there already place the subject as
a prominent component in the first semesters, as the History of Law is considered one of the most
fundamental and basic disciplines that the student must encounter when entering the course.

In other words, this subject has as much space and weight as the most specific disciplines
that address Roman Law, Philosophy, or Sociology, for example. The cases found in Italy closely
resemble those in Spain. Although the names of the subjects change—and a lot—depending on
the Law school, the content remains indispensable for the training of professionals in the field.

It can be found as a History of Italian Law, pure and simple, as well as in derived versions
that adapt to other needs. We will then have the History of Codification and the History of Modern
Italian Law as subjects that address this journey, but also make turns and address pertinent issues
to their country.

24

3 CHAPTER III

3.1 Timeline of legal history

3.1.1 When does Law emerge in History?

We associate Law with writing, the requirement of transcribed laws, codes, and a legal
system, for instance, since the creation and development of writing was something that transformed
human life — so much so that it marks the end of the Prehistoric Period and the beginning of
Ancient Times. However, is it correct to say that Law only emerged and expanded when writing
was disseminated among peoples? Believe it or not, there are some answers to this question.

There are groups of jurists who advocate legal positivism, for example, and believe that
Law is what is established, that is, what is legislated. However, wouldn’t this be a way to disregard
its origin, besides reducing the concept of this set of norms that establishes what is just and
what is improper? If we consider Law to be one of the forms used to shape or regulate social
interactions, we will quickly conclude that it emerged long before writing, as there has always
been a need — even in the most archaic societies — for the existence of a set of traditions
encompassing everything from norms for interpersonal relations to principles for community
living. This means that, even though there wasn’t a written regulation accessible nationally, these
principles were passed down to subsequent generations orally, undergoing minor changes over
time.

In this way, we can affirm that, even though there wasn’t writing to establish and document
customs at that time, the verbal agreement — which normalizes or condemns a series of practices
executed by a people — among the members of those societies is a source of Law. This source
only developed with the advancement of man and his worldview.

So, although there weren’t well-defined laws to consult, the ancients also valued a certain
standard of conduct. This means that, as in any other circumstance, breaking this standard had
consequences: the individual and their behavior were condemned; not in the way the law currently
dictates, but in other ways, as there have always been means to pressure someone to conform to
society’s norms.

What were these means? Well, that varied according to the context, gravity, and individuals,
as these “punishments” could come from a patriarch, a group of elders, or a deity.

Having said that, we conclude that in Antiquity, there was already a mechanism of restraint
that was common knowledge, passed from group to group, whose purpose was to ensure that

Chapter 3. CHAPTER III 25

the members of that community respected the social norms important for maintaining their
organization as a people. This was how it was ensured that everyone carried out their activities
and maintained their public and personal lives in a certain order.

The most primitive societies lived in smaller groups and carried out more limited actions.
However, history clarifies that these individuals already submitted to the activities and rules
imposed by an alpha or adhered to rules that formed from a silent agreement, sealed over time,
between the parties. Since these societies did not have a complex and well-adjusted level of
organization, these rules were limited to situations already known and recurring in the daily lives
of those people.

Do you see how it wasn’t always necessary to have norms for them to be followed? Law
was born before writing, but it is thanks to it that we can access records of how it worked among
ancient peoples. To give you an idea, in some circumstances, the most significant difference
between primitive Law and what we have today is the level of abstraction. This means that, in
addition to the Law of a certain society having begun in a certain way and undergone modifications
as needed, to then become what it is today, there is a possibility that it was more subjective than
necessary, to cover more facts and situations.

With writing, the first records of these norms that were already being applied emerged.
From them, we can have a very accurate notion that the people of that time, even belonging to
a more ancient society, lived by determinations to which we are also subject today. Want an
example? Look at what one of the principles in the Laws of Eshnunna, dating back to 1930 BC,
says:

If a boatman is negligent and lets the boat sink, he will be held responsible for everything that he allowed
to sink.

Does anything sound familiar to you? Perhaps because this is nothing more than a
discussion about the responsibility of the individual transporting goods. Of course, this law is
quite specific because, in that context, there weren’t as many ways to transport goods. However,
we have a provision of this kind in our civil code. Article 734 of the Brazilian Civil Code states
that “the carrier is liable for damages caused to the transported persons and their luggage, except
in case of superior strength, and any clause excluding liability is null and void.”

In Brazilian law, the duty to compensate is directly linked to negligence, recklessness, or
incompetence, whether by action or omission. In the case of Eshnunna, it is evident that negligence
is a reason for compensation, even though the norm uses the expression “held responsible.” But,
we are talking about conduct and responsibilities that are very close.

The first major civilizations that saw the need to exercise and expand writing were those

Chapter 3. CHAPTER III 26

established near rivers, as this contributed to the development of agriculture. This fact ended up
generating the need for new organizations to be created, bringing about changes.

The greater the changes, the more complex this arrangement became, as people acquired
new roles and responsibilities in that environment. The interests of different individuals and
cultures began to conflict, leading to the need for rules for social pacification.

The rules brought organization.

While one group of individuals became responsible for the security of the areas,
contributing to the emergence of militarization, another group began to take care of the
production of tools and utensils for agricultural activities. And so, tasks were discovered and
distributed among the members of that society.

Egypt and Mesopotamia were the main civilizations to develop not only writing but also
records of their laws. Mesopotamia, in particular, was the first to establish legal codes. It was the
first region where people compiled a series of codes in a specific location. One of these inscribed
stones with legal rules is on display at the Louvre Museum and is called the Code of Hammurabi
or Law of Retaliation, from which the expression “an eye for an eye, a tooth for a tooth” was
derived, in a rule that the punishment should be proportional to the harm caused.

3.2 Prehistory

As you might expect, law in primitive societies bore little resemblance to the laws as we
conceive them today in the legal universe. Ancient peoples were nomads who developed individual
relationships, but were predominantly members of hordes and tribes whose organization was
more primitive and territorial.

The rules of law originated primarily from force or morality because there was always an
individual—even in the smallest tribes—who imposed their supremacy over others due to their
intelligence, physical strength, or cunning. This man could compel others to follow his leadership
through intimidation or simply naturally attracted the group’s submission, as those who felt more
vulnerable tended to follow whoever emanated authority.

Don’t think that law originated with the Romans just because of the short history of the
Code of King Hammurabi, two thousand years before Christ. Ethnologists tell us that in ancient
times, there were caves where dozens of individuals worked diligently in the manufacture of
Neolithic axes to be sold in distant markets. The existence of these caves implies a division of
tasks even at that time and, consequently, a relationship of lords and slaves, a primitive and crude
form of labor relationship, aiming at exchange relationships, etc. (Reale, 1990).

Chapter 3. CHAPTER III 27

Even in slightly more advanced stages of civilization, since there was no writing to make
it possible to record these control practices, they were transmitted orally and presented to the
people as if they were divine revelations. Priests constantly claimed to have received the laws
through the gods, which ultimately transformed these men into the first interpreters and executors
of the initial laws of a certain period.

The punishments applied to individuals were justified as divine revenge, so law was hardly
questioned. The fear of divine retribution made law respected religiously, especially because the
sanctions were very violent. Therefore, primitive individuals rarely dared to question the validity
and application of these rules.

The verbal determinations of tribal chiefs were respected due to the authority they held.
After all, these people were instruments of appeasement of the gods and deserved obedience.

At that historical moment, there was a rigid imposition of tribal customs. So, no one
considered the law to be a way to protect man. On the contrary, it aimed only to prevent or punish
deviations from the rules. It was completely punitive, but such norms stemmed from tradition
and customary practices. Law dealt with conflicts of a penal nature and civil problems, especially
concerning marriage.

With the invention of writing, people realized that compiled or written texts were a more
effective means of preserving law than the memory of a certain number of people. Thus, traditional
customs were transcribed, leading to the first codes of antiquity, such as the aforementioned Code
of Hammurabi.

Hammurabi was a king of Babylon, which would now be Iran. His code was a set of laws
describing cases that served as models to be applied to similar issues.

The code used the principle of Talion, which is synonymous with retaliation. According to
this principle, only the offense committed by the criminal would be proportional. This principle
is summarized in the popular saying “an eye for an eye, a tooth for a tooth.” The scale of penalties
is described according to the offenses and crimes committed. For example: if a free man blinds
another free man, his eye will be blinded.

It may seem drastic for today’s standards, but the Law of Talion was real and violent. It
aimed to punish the offender with the equivalent—or something worse—of what was done by
him. One of the most famous determinations states that if a son beats his father or steals from
someone, his hands should be cut off. You can imagine where the idea of dispensing justice
with one’s own hands came from, and the punitive method used in certain cultures consisting of
cutting off the hand of an individual who steals.

Chapter 3. CHAPTER III 28

3.3 Ancient Greece

The legal system of Ancient Greece is one of the most important historical sources of law
in Western Europe. The Greeks were not excellent jurists, so to speak. The legacy of Greece lies
much more in philosophy than in law itself; however, philosophy serves to bring reflections on
aspects of law, such as ethics, politics, and freedom.

The Greeks were the great political and philosophical thinkers of antiquity. Among them,
we can highlight Socrates, Plato, and Aristotle, who were born around 400 BC. Socrates was
Plato’s teacher, who became Aristotle’s teacher, who in turn became Alexander the Great’s
teacher.

In Greece, there were no laws applicable to all Greeks, only common customs. So, each
city-state had its law. The most prominent city-states were Athens and Sparta. In some cities, a
democratic regime was established.

The most well-known democratic regime is that of Athens. There, the law was considered
a human construction rather than divine. Law was secular, that is, without religious aspects. This
is a strong influence seen today in Contemporary Law. Law in Ancient Greece was created by
men and could be changed by men.

They also did not have schools of jurists like in Rome, but there were schools of rhetoric,
dialectic, and philosophy because these were useful skills in forensic practices. After all, the
judges of that time were not judges as we know them today, but ordinary people from the people.
Thus, persuasive discourse was not legally technical as it is today but rhetorical.

All persuasion was done through oratory. We can say that the main legacy of the Greeks
for law was precisely this practice of persuasion, fundamental for the exercise of oral law.

Still linked to philosophy, the Greeks were more concerned with explaining controversies
than in elaborating great treatises, which led to the emergence of great tribunals. Already in its
democratic period, Greece had three great and fundamental institutions, which will be presented
below.

Assembly (Ekklésia) Similar to our Executive Power, the assembly was located on the
Pnyx hill, located in Athens. It was where the individual was entitled to participate and vote on
some decisions, but for that, he needed to be an adult, male, Greek, and free. That is, women,
foreigners, slaves, and children were excluded.

Aristotle defines the assembly as a place where magistrates account for the measures taken
during their respective terms and described it as an environment suitable for making decisions

Chapter 3. CHAPTER III 29

about wars, the formation, and breaking of alliances, peace, making confessions, and applying
laws. (Aristotle, 1964, ch. X, p. 115)

Council (Boulè or Bulé) Created by Solon, a legislator and statesman, the famous
Council of Five Hundred was a kind of Legislative Power in which five hundred individuals—or
more—elected by vote were responsible for creating new laws and new projects to deal with the
daily affairs of the people.

3.3.1 Heliaia Tribunal

This tribunal corresponds to the Judiciary, that is, at that time, it was the main institution
of Greek Law. Composed of six thousand people, who were drawn annually to be part of the
deliberation of cases, the Heliaia Tribunal was where trials were held. There, public crimes of
great repercussion or those that were of interest to society were judged.

But don’t think that these trials were simple. The accused and the accusers defended their
cases themselves, that is, they could plead, present witnesses, and produce evidence without the
intermediary of a representative or attorney.

3.4 Figures important in Ancient Greek Law

3.4.1 Sophists

This group was composed mainly of visitors, foreigners who went to the main cities of
Greece, such as Athens, to offer their services to the population. These services mainly consisted
of teaching the art of argumentation. So, these individuals, who would later establish the Sophist
School, were extremely educated philosophers aiming to offer mentorship to those interested in
developing their knowledge of persuasion, rhetoric, and other arts.

The arrival of these people was not well-received by Greek society. The sophists charged
for their services, which seemed unusual at the time, since the great names of philosophy of
the time never demanded any kind of payment, as the intention was always to pass reflections,
discoveries, and knowledge forward.

That being said, it is safe to say that the sophists had an unpleasant reputation and were
frowned upon not only by the general population but also by philosophers like Aristotle and Plato.
Both argued that the sophists preached a false philosophy because the aim of these individuals
was not a search for truth and the best way to use it, but rather the refinement of the art of
persuasion.

Chapter 3. CHAPTER III 30

This means that whoever organized their ideas better and presented them convincingly
would be victorious. In the legal context, the truth did not matter. The person may or may not be
lying, but as long as they know how to articulate themselves and present themselves, they will
emerge unscathed from the situation.

Socrates was called a sophist because he was “accused” of disseminating the art of
rhetoric to society. However, the philosopher never sold his knowledge and was one of the critics
of the school.

Plato, in fact, said that the sophists were initiating a process of corruption of Greek values.
He saw that the word lost its value and ceased to be something sacred in that taught method, to
be used as an object in public or legal discussions.

3.4.2 Logographers

These individuals were intellectuals, a kind of historians who mixed myths and facts as a
single entity, in a pseudoscience, considered by them as an absolute truth. They became known
for creating reports or narratives. In an attempt to rationalize the rules, they even acted in legal
and judicial spheres, but without the same success as the sophists, who were excellent in the
exercise of rhetoric. They left their legacy in the construction of chronicles and fables.

3.4.3 Law vsReligion in Greece

Ancient society was marked by mythical or religious influence. So, as with other peoples,
the law that originated in Greece was deeply grounded in religious bases, but certainly did not
remain that way.

With the progress of the collective and in the face of critical thinking being developed
through philosophy, more and more space and value were given to democracy. So, although the
Greeks worshiped various gods, these two areas began to believe that laws were not divine orders
or revelations.

The community saw the norms as a creation of man that was subject to change, as well as
to be revoked by man himself. This differed from the belief in divine law, where one could not
question or disobey, as the individual would suffer severe consequences.

If we stop to think, a significant part of the habits of the most primitive peoples is firmly
linked to religion. Fustel de Coulanges, a French historian considered a genius in the 19th century,
discusses this topic by explaining some of the most striking legal norms and showing how the
norms covering property and heritage were linked to elements of religious basis. The most

Chapter 3. CHAPTER III 31

popular of these was the cult of the dead.

Through this practice of worshiping the dead, found in various civilizations, society
developed spiritual values, morals, and rules of conduct. Thus, this also became one of the main
bonds among family members.

3.4.4 Ancient Rome

The Romans conquered a significant part of European territory. We have observed that
they dominated the Middle East and even North Africa. Therefore, it is accurate to say that the
Roman Empire was indeed the greatest and principal empire of antiquity.

It is no wonder that the expression “all roads lead to Rome” arose because even though
we use it to indicate that no matter the number of available alternatives, they will all lead to the
same result, the expression originated from the realization that the Roman people conquered so
many places that the number of roads connecting these territories to Rome was enormous.

The Roman Empire was the center of the world. This period was extremely valuable and
brought various contributions to modern society, especially in the field of law. Rome ruled for
over ten centuries and had to perfect hundreds of laws and legal systems to maintain control over
its territories and the balance among citizens, as well as between them and foreigners.

In general, we can say that there were three periods of great prominence in ancient Rome:
law in the archaic period, in the classical period, and in the late empire, as we will see next.

• Archaic: it was governed by a monarchy. The law of a rural society with many religious
rules was perceived. In general, it was an extremely primitive law closely tied to customs.

The State only resolved major conflicts such as wars and punishments for serious crimes,
with cruel penalties for those who disobeyed the rules. It was a very formalists and rigid law,
based on tradition and rituals as formal conditions of validity.

• Classic: It was the peak period of Rome, where many of the legal understandings that
we still have today were constructed, allowing for a scenario of better legal development
thanks to the implementation of the Republic. It was a more evolved law with secular
bases, meaning non-religious. It was originated by jurists, who created it in a coherent
and rational manner.

Chapter 3. CHAPTER III 32

The values of Roman Law were the protection of the individual’s will. It had a highly
individualistic focus, on family autonomy, where power rested in the hands of the father within
what was called paternal power, with great emphasis on the word given. It is at this historical
moment that the distinction between Public Law and Private Law arises.

• Late Empire: This period was marked by the decline of Rome, both politically and
legally. Emperor Justinian compiled everything that was best produced legally in the
classical period and, with that, formulated a set of codes called Corpus Juris Civilis.

This compilation of laws is the origin of modern codes. We know that today we have
many Latin expressions in our Law because their origin is from ancient Rome. Therefore, it is
possible to get an idea of the strength that this historical period had in our legal system.

The late empire was not generous regarding the development of Law, but this period has
its relevance. It was during this time that everything created during the Republic was compiled
and put into practice. One of the most prominent figures in this regard was Justinian, the emperor
responsible for elaborating the Corpus Juris Civilis.

A term Roman Law is still employed to designate the legal rules embodied in the Corpus Juris Civilis, an
organized collection of laws and legal principles condensed into a single, systematic, and harmonious body,
albeit composed of various parts. This compilation was planned and executed in the 6th century AD by
order of Emperor Justinian of Constantinople, constituting a legal monument of paramount importance that
endured through centuries and reached our days. This body of legal norms governed the Roman people
throughout various periods of their history, from the origins of Rome to the death of Justinian, the Eastern
Emperor, which occurred in the year 565 AD. (Grassi, 1996)

Justinian feared that the Law could end up becoming commonplace, especially since the
conquest of new lands was so constant. He believed that laws could be lost amid such expansion,
especially because Rome was already divided between the Eastern Roman Empire and the
Western Roman Empire. Therefore, the way he found to unify these domains was through the
creation of a unified body of laws. This was done by compiling previous productions, that is,
edicts and laws, to create a single legal instrument.

It is known that all this was forgotten for a long period but was rescued shortly before
the beginning of the modern age. What is the point of creating the Corpus Juris Civilis, then?
The fact that all these laws were grouped into a single material was essential for them to become
accessible to future generations, as is our case today, where we have a Law so influenced by past
determinations.

Although the Romans were polytheistic for a long time and worshiped various gods when
Rome began, another important aspect of Justinian’s empire is that the emperor believed that a

Chapter 3. CHAPTER III 33

single religion should prevail throughout the territory to unify the Eastern and Western powers.
Since this period, we are talking about here, occurred after the birth of Christ, it is correct to say
that Christianity was constantly advancing. Therefore, this was the belief that began to influence
the Romans—and a lot! — reflecting in the laws.

And even though the main norms of Roman Law were elaborated in the period of the
Republic, they were influenced by religion in certain aspects, especially in Family Law. In other
words, this Law began to have a Christian morality that had not been considered before.

3.4.5 Medieval Era

This was a period when there was no concept of a State or even a city, as communities
predominated. They were called feudal estates. There existed an individual called a feudal lord,
who was a noble, the owner of the property. There were also vassals, known as serfs.

This coexistence was marked by bonds of dependency between lords and serfs. The feudal
lord provided security and granted possession of a portion of his lands that could be cultivated.
In return, the vassal showed loyalty, submission, and produced food for sale and also for the
feudal lord’s consumption. After all, the owner granted possession of the piece of land, but it
remained his property.

Society was basically agrarian.

As the Middle Ages progressed, Secular Law—as seen in Ancient Rome—weakened and
became heavily influenced by the Catholic Church. Thus, the feudal lord came to have control
only over his fiefdom, while the Catholic Church had control over everything, standing well above
the fiefs. It is in this scenario that Christianity gains importance in the Middle Ages, strongly
influencing the thinking of that period. Regarding the Church’s influence, speculations focused
on theological (religious) issues, attempting to reconcile faith and reason.

Church members could dictate the Law in specific cases, and the courts rendered judgments
as an expression of divine will. The famous Tribunal of the Holy Inquisition emerged in the
Middle Ages, which was a special court to judge and condemn heretics. The Inquisition was
created to combat heresies, which were challenges to the doctrines of the Catholic Church.

The term encompassed any activity or manifestation contrary to what had been defined by
the church regarding matters of faith. Heretics were considered witches and sorcerers. Basically,
what the Inquisition sought was the confession of the heretic, and for this, torture was used.
Punishments were also very cruel, such as being burned at the stake.

The model of punishment was that of torment, meaning that the body of the condemned

Chapter 3. CHAPTER III 34

was used as a form of punishment. It was difficult to live in the Middle Ages. Cruelty was
considered something very normal and, in some cases, as the will of God.

3.4.5.1 In other words: the Dark Ages

Since this period emerged after the fall of the Roman Empire, it is also called the Dark
Ages, evoking all the economic, cultural, and even demographic deterioration of what was
produced by the Romans up to that point. It is also during this time that a new socioeconomic
organization is established to replace the previous one, which begins to develop as the Middle
Ages progress.

When it comes to Law in this period, it is certain to affirm that much was happening.
The Law of the Germanic peoples and Feudal Law, for example, were just some of the legal
phenomena that emerged. However, all of this was still very much based on community customs
and oral tradition; it is no wonder that there are so few written records we have about these cases.

When did feudalism begin?

We can affirm that, in the early Middle Ages, the economic and political structures that
existed in the Empire were decentralized through the implementation of feudalism, until they
disappeared. This system was installed in Europe to protect the territories. So, as mentioned
earlier, there were lands guarded by a feudal lord who also had the responsibility of military
service, meaning some of these lords needed to control the property and defend it from Norse
attacks and other barbarian tribes.

As the most prominent characteristic of that historical period was economic and political
decentralization, each fief had its own internal structure. However, the feudal lord was at the top
of the hierarchy, as most functions, especially those of judging and determining which norms
would be applied in that organization, were concentrated in his hands.

Especially due to this autonomy of the feudal lord, serfs—farmers and servants, as well
as villains, known as free men—were expelled from the fiefdoms for trivial reasons. It was this
abandonment that led to an increase in thieves attacking travelers and plunderers of real estate
and properties. A severe security crisis was generated, even leading the Church to face a crisis.

In 1054, there was a division of the Church into two groups, the so-called East-West
Schism, with one headed by the Pope in Rome and the other by the Patriarch in Constantinople. It
is in this context that the Crusades arise. This was a religious but also military movement, called
by Pope Urban II, who was driven by social and political objectives, although his main intention
was the rescue of land under the dominion of the Church in Constantinople.

Chapter 3. CHAPTER III 35

3.4.5.2 Canon Law

Since the major institution of that period was the Catholic Church and its Canon Law has
written records, why not delve into it a bit? The Church gained great proportion and importance
precisely because it was present throughout the territory. Even though there was decentralization,
there were still clergy in all fiefdoms and bishops in each location. Thus, the Western Church
ended up assuming many moral, public, and social responsibilities valued by the ancient empire.
That’s why, for a long time, its rules were the only ones written down.

This is because, as the Catholic Church organized itself from the consolidation of
Christianity, it gradually began to develop its own internal rules and those applied to its faithful.
Over time, this regulation came to constitute its Law: Canon Law.

Canon Law is based on written sources and actions for the enforceability of this Law by
the Church since its foundation. This means that documents such as papal decrees, decisions of
councils, and even the Bible itself are considered sources of Canon Law. They are significant for
determining how the Church should function, what its powers and organization were, among
other aspects. These documents were even used to define rules that interfered with individual
behavior.

But what did Canon Law consist of, in fact?

I can advance that it was a Law of a religious nature, whose rules were based on celestial
principles revealed in the sacred books, such as the Old and New Testaments. Therefore, they are
the Law for all who adopt Christianity, regardless of where these faithful are located. Do you see
why it was easy for the Catholic Church to become such a powerful and important institution?
There was never a demographic limit, and anyone who followed Catholicism would, consequently,
follow the doctrines and principles of the Church.

And don’t think that these dogmas fell into disuse over time. On the contrary, they were
preserved and are still reproduced in this institution today as a way of regulating the activities
carried out there. Not to mention the Bible, which still serves as the foundation for many Catholics,
although today there is a clear separation between the laws produced by the State and Christian
laws.

But, if you are not familiar with the sacred scriptures of Christianity, you may wonder if
a book like the Bible really imposes norms of conduct and rules that determine how a person
should behave. The answer to that is yes. Anyone who has access to the books of the Bible can
see that, in both testaments, there are various decrees on how the individual should act, not only
as a human being but also in society when interacting with others.

Chapter 3. CHAPTER III 36

Some decrees found in the Ten Commandments can elucidate this. They are found in
the book of Exodus and list decrees that — some — could easily be part of the laws of a penal
legislation, as is the case with the sixth commandment: “Thou shalt not kill.” Here is an excerpt
from the New Testament regarding this commandment:

You have heard that it was said to the people long ago, ‘You shall not murder, and anyone who murders
will be subject to judgment.’ But I tell you that anyone who is angry with a brother or sister will be subject
to judgment. Again, anyone who says to a brother or sister, ‘Raca,’ is answerable to the court. And anyone
who says, ‘You fool!’ will be in danger of the fire of hell. (Matthew, 5:21-22)

You can see that if we look at the Penal Code of 1830, for example, we will notice that
penalties were already provided for those who committed murder. However, the sanctions were
different.

The equivalent in the current Brazilian Penal Code, in Article 121, states that the individual
will be subject to a penalty of imprisonment for six to twenty years if he commits simple homicide,
but his sentence will be twelve to thirty years if he commits qualified homicide. In other words,
the determination of the penalty depends on the circumstances, forms, and aggravating factors of
the crime. So, we see that severe punishment for taking another’s life is not only linked to divine
justice, but is also a fundamental rule for the balance of society.

Returning to Canon Law, it is worth noting that, although the feudal lord had jurisdiction
within his fief, he also accepted Canon Law over time, this being just one of the evidence of
the Catholic Church’s dominance over its people. No matter where you lived; the Church was
present.

A curious fact is that some domains of private Law were even drafted by Canon Law;
particularly those that aimed to establish a moral in society, such as Family Law. For a clearer
idea of what I’m talking about here, here’s an example: when there was a disagreement about
who should resolve a certain situation or which law to enforce, this ended up being decided by
Ecclesiastical Courts, not by the laity (of which feudal lords were part).

It is not surprising that, eventually, there was found to be a monopoly in certain areas of
Law by the Catholic Church. However, this did not last forever, of course, as some changes began
to occur in society during the late Middle Ages, with the increase in maritime navigation for
mercantile purposes.

The use of maritime transport for trade in Western Europe required new rules, and
Law, once again, was called to change. It is during this period that the process of political
power centralization began. An opportunity was opened to establish the formation of national
monarchies through a treaty between the king and the middle class of the time, also known as the

Chapter 3. CHAPTER III 37

bourgeoisie. This entire process is based on the continuous political transition to the hands of the
kings, or rather, during centralization.

From this, the king became able to expand his territorial control. It was possible to
consolidate political power in his hands, which gave him the ability to determine the borders of
his kingdom.

I believe it is clear that the figure of the king played an undeniable role in the centralization
of political power to a single person, right? After all, he was the one who represented the nation,
as well as created the geographical lines of the region; structured the entire financial system,
delimited the borders, and legitimized the laws. All of this was, at first glance, considered
beneficial.

And so it was considered, especially because these measures were facilitators for the
development of trade. Eventually, this contributed to establishing a market.

In this context, the sovereign figure defends and favors the bourgeoisie. Therefore, the
sovereign government is also supported by it. This relationship is established through monopolies
and privileges granted. Privileges are seen in various contexts, but especially in maritime and
colonial trade.

In general, the money from the bourgeoisie’s taxes was invested in the so-called great
voyages and directed towards the organization of an army. This is how the king can offer security,
tranquility, and order so that this group of people can conduct their transactions worry-free.

Both the Absolutist Regime and the Mercantilist System are established. In addition,
while this army was being organized and the king seemed to succeed in his plans, the cavalry,
which until then served a defensive role, lost its value and access to the nobility, as political
power decreased due to the loss of lands.

With the loss of territory also comes the loss of military power.

Another curious fact is an event that marked this time and emphasized the nickname
“Dark Ages”. This is the Black Death, a pandemic that struck Europe in the 16th century and
killed a staggering number of people.

3.4.5.3 How did the Inquisition work?

Another thing that emerged during this period was the Inquisition Tribunal.

This was the way the Catholic Church found to hold accountable anyone recognized as a

Chapter 3. CHAPTER III 38

heretic, that is, an individual whose line of thought was contrary or radically different from the
prevailing religious system. The Church saw these actions as a way to defend the principles of
Catholicism.

The tribunal had the responsibility of identifying, judging, and condemning individuals
who were considered enemies of the Church. In other words, it judged and condemned those
who went against the principles employed by it or who were suspected of practicing a different
religion.

Due to the relationship between Church and State, the power of the Church ended up greatly influencing
the principles and logic of secular law ordering. Ultimately, the expansion of the competence of the
Ecclesiastical Courts made the hunt for heretics essentially a judicial operation. Church and State joined
forces in combating the proliferation of Satan’s followers, who threatened not only the power of the Church,
but also the power of the sovereign. (Levack, 1988)

Of course, long before that, the Institution already incriminated and punished those who
deviated from the rules imposed by religion. However, the system was accusatory, not inquisitorial.
Do you see the difference?

In the accusatory system, three parties are necessary: the accuser, the defendant, and the
judge who adjudicates the dispute. In the inquisitorial system, the Church adopted the idea that
it was unfeasible to wait for accusations to be made. Therefore, it should identify who these
individuals were on its own.

This means that the inquisitorial system does not require accusations to be made by the
people, nor that the accused individual undergo a process to answer for it. In this system, the
Church itself finds these people who are—or who are supposedly—engaging in practices contrary
to the rules and judges them.

Do you see the conflict? The same entity that accuses is the one that judges and condemns.
The Church has no dissenters, and that was the church’s strategy with the creation of this tribunal.

It was a period in which various people, both from within and outside the church, ended
up being persecuted. Therefore, it was not uncommon to come across cases of priests, who were
tormented and judged by the Inquisition Tribunal.

One highly emblematic figure who was a victim of this period was Joan of Arc, a French
warrior burned at the stake. However, she was also canonized—ironically or not—by the same
Catholic Church later.

The persecution of women during this period was extremely common, especially those
who showed skill with mixtures that promised a cure for some illnesses, that is, those who

Chapter 3. CHAPTER III 39

developed rudimentary medicinal treatments. They were considered witches for using elements
of nature to help others. Most of these women were harassed to the limit and needed to remain
hidden to survive. Some were also taken to the stake.

If you thought that tying someone alive to a stake to burn them was relatively barbaric,
know that various levels of torture were used during this period, to the point that the population
believed those methods were normal. People were creative when it came to subjugating and
hurting.

Therefore, no form of flagellation used to make individuals confess their supposed crimes
was really judged as the atrocities they truly were. In fact, one of the most severe punishments for
individuals convicted as heretics, especially for those who refused to admit their “error” and
ask for mercy for it, was the punishment of burning the individual alive, in public, before other
people. The act served not only to reinforce the power that the Church had over the people, but
also to intimidate and restrain the impulses of people to follow a similar example.

This was a very effective way to prevent the faithful from straying from the path or
desiring to seek another religion and, thus, follow new beliefs. And don’t think that the inquisition
tribunals ended at the end of the Dark Ages because, precisely because they had their own internal
rules, they remained relevant to the interests of the Church for a longer time. It is possible to find
various records of the inquisition still operating in the Modern Age, since this system was widely
used by the absolutist kings who allied with the Catholic Church. The goal was to persecute
anyone who publicly opposed these kings or their way of governing, as well as to persecute
declared enemies.

3.4.6 Why does Brazil belong to the Roman-Germanic family of law

Our origin, in terms of law, is primarily Roman. However, there is an undeniable Germanic
influence due to the barbarian invasions that were responsible for the decline and consequent
fall of the Roman Empire. These barbarian conflicts occurred through invasions carried out by
Nordic tribes of Germanic origin, whose main objective was to conquer new lands to live on
Roman soil. It’s no wonder that the Middle Ages were full of cultural mixtures. The best part?
Our current law originates from this combination.

Now, let’s recap a bit about Rome’s past. All these phases, as each of them had a different
form of economic, political, and social organization, will have distinct views and applications of
law from each other. For example, during the periods when Rome was subjected to a monarchy
or an empire, all power was centralized in one individual: in the hands of a king or an emperor.
During the Republic, in the classical period, we can perceive the emergence of functions and the
establishment of vital positions for the development of law.

Chapter 3. CHAPTER III 40

During the monarchical period, there was no evolution in written laws. Thus, the laws of
the time remained linked to the figures of the clergy, who were not only responsible for preserving
the good customs and morals of the people but also acted as intimate advisors to the kings,
influencing the decisions made.

It is only around 509 B.C., at the beginning of the classical period, that we will start
to have the first written laws. The main one was the Law of the Twelve Tables, which was a
compilation of norms created under pressure exerted by the people. In other words, at some
point, the plebeians united and provoked a claim against the patricians to demand greater legal
security—through written laws—to ensure them a fairer process, since now, they would be
accessible to the people and not withheld in small groups.

Initially, no more laws would be created. The struggle of this lower class of the population
was only to have this set of traditions that already existed among them recorded.

According to Altavila (1989), the written norms serve to guarantee a level of equality
between the patricians and the poorer class of the population, set forth as follows:

3.4.6.1 Law of the Twelve Tables:

• Table I. It referred to the summons to trial; no one was allowed to flee from judicial
summons. There were no court officials to perform such functions: the plaintiff made the
citation themselves.

• Table II. Suspension of the case due to illness: it established the deadline for appearing
in court.

• Table III. Execution in case of debt confession: after being sentenced, the debtor had
30 days to pay. If they did not pay, they were arrested and brought before the magistrate;
if the debt persisted, the debtor would be bound with straps or with a 15-pound iron
weight at their feet; if they still did not pay, they could be killed, quartered according to
the number of slaves, or sold as a slave. This is explained because, during this period,
the royalty lived in precarious conditions, only later did the Roman treasury enrich itself
with plunder (loot from other peoples). Servius Tullius, the sixth king, instituted statistics:
everything was registered, and the censors searched every corner of the kingdom for
wealth to pay taxes and increase revenues.

• Table IV. Dealt with paternal power and other matters of Family Law (in jure patrio): the
monstrous child could be immediately killed; they advocated eugenics; the father had
the right of life and death over the child, meaning the right to whip, imprison, compel to
menial labor, sell, and kill; over time, this was mitigated, and later, these cases would

Chapter 3. CHAPTER III 41

lead to the removal of paternal power (in this aspect, Greeks and Romans differed from
other peoples of antiquity).

• Table V. Of hereditary guardianship: women could not manage civil affairs, remaining
under perpetual guardianship. Adverse possession of things under a woman’s guardianship
was not allowed (she was absolutely incapable at the beginning of the republican period).

• Table VI. Of property and possession (dominium et possessione): it constituted an
admirable basis of Civil Law. Rome was agrarian, did not have mining exploitation; the
Romans cultivated olive trees, vines, and wheat; they prohibited the purchase of real
estate by foreigners to not harm nationals (land ownership played an essential role for
the Romans, both economically and in terms of religion, due to the worship of ancestors
buried there).

• Table VII. Of the right relating to buildings and land: the economic science of the Romans
was that of a warrior and agricultural people. The kingdom, and later the Republic, owned
public lands, so they translated the agronomy book of the Carthaginian Mago; roads
could not be plundered, as they were the routes of the legions; anyone defecating on the
royal roads could be severely punished. Clause IX allowed cutting branches of trees if
their shade invaded the neighbor’s yard; by Clause X, the owner had the right to harvest
fruits from neighboring trees that reached their yard. These precepts appear in our civil
code: harmful use of properties, neighboring trees, forced passage. (Altavila, 1989)

Historians in the field of History believe that the Law of the Twelve Tables may have
been the result of a threat by the plebeians to leave Rome to create a city on the Sacred Mount if
their demands were not met. There are even some who argue that these laws were inspired by the
legislation created by Solon in Magna Graecia.

The peak period for Law occurred during the Republic, as the entire political structure of
Rome underwent drastic changes. The people came to have a pair of consuls who dominated
the top of the hierarchy, exercising a kind of executive power. This hierarchical organization
involved various magistrates subsequently, that is, positions or public offices for the exercise of
governmental functions.

With these changes, many interesting figures emerged for Law. This is the case of the
quaestors, who acted as treasurers in dealing with finances; the censors, who were responsible for
the classification and control of the expanding population with the territories; and the praetors,
one of the most important for Law, as we will see later.

But why is this period of the Roman Republic so relevant? Because, during it, the sources
of Law were expanded, as the people had not only the traditions already practiced by society

Chapter 3. CHAPTER III 42

previously but also the constant development of written laws and the edicts of the praetors, a way
of legislating during this historical moment.

The praetors had a judicial function, but not jurisdictional, which means that they did
not judge cases. Their main responsibility was to administer justice for a period of one year.
After being elected, the praetors drafted a set of rules and made an official pronouncement to the
population about how this regency would occur. This is what we call edicts.

The edicts consisted of judged cases that would be used as regulation for other similar
cases that arose. Additionally, they had regulations specifying how appearance in court would
occur, how the parties were called, among other issues.

So, the praetors were responsible for establishing what the case was when hearing the
parties, to verify if there was really a cause of action. Since going through the praetors was only
the initial phase, the people needed to face the judges next. However, it is worth noting that we
are talking here about private judges. Justice was, in a way, limited and private, as the people
who judged the dispute in question were chosen by the parties involved.

Still, can you perceive the importance of the praetors? It was from them and the creation
of the edicts that the development of Civil Procedural Law began.

Another figure worth mentioning that emerged in the Republic is that of the jurisconsults.
This group of people was part of the Roman aristocracy. So, due to the skills and techniques they
held in the field of Law, they were appointed to assist the parties involved in a lawsuit and to
assist the praetors.

This means that their main responsibility was to reflect on justice, to provide consulting
services. However, this was not the only function of the jurisconsults. In the imperial period, it was
established that these consultations would become precedents, that is, they became binding, as the
jurisconsults also acted as jurists—a term from which jurisprudence derives, which designates a
set of decisions made about a subject, serving as a reference history for future decisions.

Soon you will realize, as already elucidated in Table VII, that Roman Law expanded
mainly in the civil and private sphere, unlike other civilizations that developed, especially,
Criminal Law due to constant disputes and conquests of territories even internally. The rivalry
between plebeians and patricians regarding common lands led the Romans to create, in legal
terms, the institution of the right to property.

In the Roman era, there prevailed an individualistic sense of property, although there were two forms
of collective property: that of the gens, with each individual owning a restricted portion of land (1/2
hectare), and only movable assets were alienable. With the disappearance of this collective property of
the city, the family property emerged, which gradually was being annihilated in the face of the increasing

Chapter 3. CHAPTER III 43

strengthening of the authority of the pater familias. Collective property gave way to private property, going
through the following stages, as summarized by Hahnemann Guimarães: 1) individual ownership of objects
necessary for each individual’s existence; 2) individual ownership of goods for personal use, capable of
being exchanged with others; 3) ownership of means of work and production; 4) individual ownership in
capitalist fashion, meaning its owner can exploit it absolutely. (Diniz, 1989)

In the classical period and for much of the Republic, the right to property grew. So, each
piece of land acquired was treated as praetorian property, meaning that when the praetor began to
protect the individual who, by purchasing something, should receive it. Another point to consider
Rome is that it was a slave society. Those subjected to this regime were mainly debtors, meaning
people in debt who had no other way to pay off their debts.

They were also subjugated when there was Roman rule over certain territories. These
people caught in the crossfire would be enslaved. They were vital, as a group, to Rome’s economy
because much of Rome’s wealth was based on agriculture.

Thus, it was these individuals who worked the land and were responsible for the abundance
of products that would later be traded. One of the factors that led to the decline of the Roman
Empire was precisely the abandonment of the slave culture, as in 326 BC, a law was passed
prohibiting debt slavery. So, the only way to obtain these unpaid workers was through battles for
new lands. However, Rome began to lose wars after some time, losing territories and labor force
as well.

3.4.7 Modern Age

It was during this historical period, characterized by the transition from feudalism to
mercantilism, that later evolved into what we now know as capitalism in the contemporary age.
Mercantilism was marked by the development of trade and the circulation of currency.

Remember that in the Middle Ages, there was a concentration in the feudal structure?
And that society was almost entirely agrarian? In the modern period, there was the formation of a
class called the “bourgeoisie,” which consisted of merchants, artisans, and professionals. The
power of the feudal lords gave way to the unification of states around the figure of monarchs.

During this period, there was also the formation of nation-states with the centralization
of power around absolute monarchies, in which the monarch had total control. The thinkers
of this time called themselves Enlightenment philosophers and claimed to live in the “Age of
Enlightenment” asserting that the Middle Ages were the “Dark Ages.”

In Law, the Enlightenment aimed to make legal knowledge clear and free from obscurities.
They argued that this could only be achieved through the use of reason. The Enlightenment was
closely linked to the Natural Law school (jurisprudence), which originated with ancient Greek

Chapter 3. CHAPTER III 44

philosophers and was connected to the idea of human nature or the human essence, regardless of
the culture to which one belonged.

Enlightenment thinkers believed that through reason, it was possible to reflect on which
norms are part of the Law, aiming for them to be perceived as universal and immutable. To avoid
obscurity and injustices of certain customs, there was a push for the construction of a clear and
reliable legal system, which would be achieved through codes and written laws.

3.4.8 Conquest of American

A recognized milestone in the transition from the Middle Ages to the Modern Age is
precisely the discovery—or conquest, if you prefer—of America, although the official milestone
of this transition is the fall of Constantinople in 1453. However, the moment of Christopher
Columbus’s arrival in America, almost 40 years later, can also be considered a reference point
for this important transition.

It’s worth noting that the Modern Age was profoundly marked by changes that heavily
influenced Law. We have already seen that some religious reforms were made, and it was in this
context that the Modern State was created—which strongly impacted Law. And why not delve a
little into the “discovery” of America? If we pay attention to the Great Voyages and conquests of
new territories, we will notice that they only became possible due to a set of technologies that
were true innovations of that time, such as maps and compasses, for example.

Even the ships themselves, capable of crossing continents, were great inventions! It
was there that the bourgeoisie emerged, something that radically intensified the expansion of
mercantilism and trade. Mercantilist policies preached that a nation’s wealth consisted of the
accumulation of precious metals, such as silver and gold, but also by the circulation of goods and
services. Because of this belief, “currency exchange” was created, and people began to attach
importance to increasing the number of these metals circulating in trade.

Naturally, this increased the desire to possess them. It’s no wonder that kings, especially
absolutists, would approve of the bourgeoisie and lend full support to maritime companies
continuing to explore and conquer new lands. This would serve not only to expand their territory,
but also to find more of these metals.

And for Law? How did it undergo any influence from these changes? Well, all these
factors led to discussions about the rights to the inventions being developed at the time, such
as maps. After all, maps comprised a kind of “intellectual property rights package.” There was
also much argument about the right to conquest, possession, and property. In other words, this
context leads to debates about who arrived first, who had already established themselves there,

Chapter 3. CHAPTER III 45

who would have advantages over the land, etc. All of this will also raise an important point: what
would be the recognition of the Natural and innate Law of the indigenous people over the territory,
since they constitute the peoples who were already on the lands when they were “discovered”?

This is a moment that we can establish as a milestone in the first discussions about modern
Natural Law.

3.4.9 Valladolid Debate

Moreover, popularly known as “the Valladolid controversy”, this is an important historical
landmark in the discussion of the rights of indigenous peoples, or the group of people who
occupied the lands before the arrival of European settlers. As one might imagine, the name comes
from the debate that took place in the Spanish city of Valladolid, which lasted for about a year,
between 1550 and 1551.

The debate was led by two important figures of the time: Bartolomeu de Las Casas and
Juan Ginés de Sepúlveda. Las Casas, a young friar, was a great defender of the indigenous people,
while Sepúlveda was completely in favor of the exploitation of America.

The Spaniards, with their horses, swords and spears, began to practice unimaginable
acts of cruelty: they invaded towns, cities and villages, sparing neither children, the elderly nor
pregnant women. They opened the wombs of pregnant women and cut them to pieces as if they
were slaughtering sheep cornered in their pen.

They would make bets on who, with a single blow of the sword, would split and open a man in half, or
who, more skillfully and dexterously, with a single blow, would cut off his head, or even, who would be
better at opening a man’s entrails with a single blow. (Casas, 1984).

On the other hand, Ginés de Sepúlveda strongly argued that a war against individuals
who showed themselves to be inferior and incapable of leading a life in society as they knew and
valued it was perfectly legitimate.

Although both young men favored the Spanish colonizing the lands and of the peoples
found there being catechized and led to convert to Christianity, they disagreed on several other
points of that discussion. Sepúlveda was vehemently in favor of the enslavement of the local
population, as he saw them as inferior.

It could be said that what happened in Valladolid was the culmination of an intellectual process through
which it was intended to classify the Indians as barbarians, lacking in reason and with an inferior type
of humanity. All this with the purpose of applying to them the doctrine of barbarity that, many centuries
before, had been announced by Aristotle, and which concluded that barbarians were naturally slaves.
Then, all that remained was to show that the Indians were barbarians. With this, it was intended to justify,
ideologically, the enslavement of the Indians. (Gutierréz, 1990)

Chapter 3. CHAPTER III 46

Therefore, the Right of Guardianship over the original peoples was obvious because if
that group of people was incapable of organizing and governing themselves, it was up to the
Europeans to do so. Nevertheless, Sepúlveda also argued that the preaching of the gospel to those
people was the responsibility of the Christians and that the teachings should be done even by
force, that is, using weapons, if necessary.

Sepúlveda’s argumentation had no solid foundation. When we stop to analyze, we will
see that some of these pre-Columbian peoples, such as the Incas, for example, administered a
giant empire in America before the arrival of the colonizers. Therefore, they had full capacity
to govern themselves. If we look deeper, we will see that the Aztecs and the Mayans also had
calendars, knowledge of astronomy, an already developed economic system, advanced agricultural
techniques, among other things that only prove that there was no reason to be considered inhuman
and uncivilized.

Las Casas did not see things the same way as Sepúlveda.

He did not believe that the humanity of the indigenous peoples was not full, just because
they carried barbaric traits. That is why Las Casas begins to defend the principle of equality
among all men, arguing that the degree of civilization was not relevant to measuring someone’s
humanity.

In addition, Las Casas was against forced conversion to Christianity, as he believed that
the indigenous people should go to Christ of their own free will. In other words, despite agreeing
that the area should be ruled by the Spaniards, and that the original peoples should have access to
God, he preached that all this should be done peacefully and that the indigenous peoples should
be considered human beings.

His main argument during the debate was that, if European culture was so much more
developed, it should show itself through encouraging the evolution of the other peoples who lived
there. It is from there that we begin to discuss the possible Natural Right that is born with the
individual. Among the points raised were:

• The Right of people to govern themselves;

• The freedom to do and to have dominion over things; and

• The Universal and innate Right of all men.

Since there was no final decision, so to speak, the whole process of colonization continued.
The weight of Las Casas’ words may not have been so great at the time, since thousands of

Chapter 3. CHAPTER III 47

indigenous people lost their lives during the “conquest”. It is easy to imagine that the process
took place more as Sepúlveda preached than as Las Casas guided. In other words, the takeover of
America was very violent.

It is important to emphasize that, due to the greed and pressure of the kings to obtain
minerals, the most barbaric conquest took place in the places where the presence of silver and
gold was most quickly noticed.

In Brazil, it happened a little differently. The Portuguese did not find silver and gold right
away when they arrived in our lands, but only many years later, when they arrived in Minas
Gerais. So, the most obvious form of exploitation found was the export of Pau-Brasil. Scholars
who claim that colonization in Brazil was violent are right, but we must clarify that it was not as
brutal as in some other parts of Latin America.

As an example, let’s discuss the region where Mexico is currently located. The area was
all populated by Aztecs and Mayans. It is estimated that about 25 million indigenous people
lived there, but unfortunately, the place also had an abundance of gold that was discovered by the
Europeans as soon as they arrived. Historical data shows that, a hundred years after the arrival of
the European people, only one million of them had survived the colonization process. It is easy
to see that there was an extermination of this population.

What makes us see clearly the importance of the debate on this subject is the fact that
centuries separate us from the Valladolid controversy. The debate held there had universal themes
and ideas that were far ahead of its time, which definitely reflected on the following generations.
The basis of the issues debated there is surprisingly contemporary, as its foundations can be
found rooted in behaviors, cultures, and beliefs to this day.

Sepúlveda’s arguments about the domination that superior men should exercise over inferior ones inspired
the development of colonialist theories that, justified in the superiority of one people over another, lasted
for centuries. The colonial society conceived by Sepúlveda, in which the “American homunculi” should
permanently submit to the Spaniards, men superior in wisdom, prudence and virtue, served as an example
for the European colonialist models in Latin America and Africa, which were in force until a few decades
ago. (Gomes, 2006)

We know that, at first, the debate was created as a means of analyzing the confrontation
against the indigenous people and Sepúlveda’s arguments opened up for an interpretation of the
facts that may have influenced a series of actions reproduced throughout the following generations.
However, it was also possible to extract a point of paramount importance for the future, especially
from the allegations made by Las Casas during his defense of the people who already lived
in the lands in question before they were even located by the Europeans. This point is that the
Rights of every individual—both individual and collective rights—should be protected in any
circumstance.

Chapter 3. CHAPTER III 48

Although we know that, after the French Revolution, people won the right to have rights,
we still see, today, modern wars with political and religious biases that violate this supposedly
guaranteed freedom. We have, as an example, the war between Russia and Ukraine, where Russian
President Vladimir Putin is using everything from nuclear threats to starvation as weapons to win
a territorial dispute, taking away the basic rights of hundreds of people in the process.

It is no wonder that, in discussions where there is deliberation about immigrants, for
example, people use arguments very similar to those used during the Valladolid debate, to violate
the Rights of these individuals, nullifying their humanity in the process. Considering this, you
may be reflecting on this setback and wondering, even, if the content of the debate between
Sepúlveda and Las Casas is not relevant even today. Well, we are seeing that it is.

49

4 CHAPTER IV

4.1 The lines of Law Contemporary Age

The Contemporary Age began in 1789 with the French Revolution and continues to this
day. This period is marked by the approval of the Declaration of the Rights of Man and of the
Citizen, which enumerated the rights inherent to all men, regardless of their country, religion,
gender, or social class. These rights included liberty, property, freedom of expression, and the
need for legal justification for imprisonment.

After the French Revolution, people began to have rights. Citizens had their existence
recognized by the State and had rights and duties. It is impossible to discuss the Contemporary
Age without also mentioning the conflicts of this time, especially the two world wars, which were
originated by the European powers’ search for territories, with ideological motivations, aiming to
reach the top of the global economy.

The Second World War brought many ethical questions about, for example, the war crimes
committed by Nazi soldiers in the concentration camps or the American attack with atomic
bombs on the cities of Hiroshima and Nagasaki in Japan. At the end of the conflict, the UN was
created to seek peace between nations.

Influenced by the atrocities committed during the Second World War, which had recently
ended, the UN promulgated in 1948 the Universal Declaration of Human Rights, which was
inspired by the Declaration of the Rights of Man and of the Citizen (1789). This document
created by the UN has no binding legal force, but it has become an important ethical reference
for the world and has inspired many countries to include the principle of human dignity in their
constitutions.

From there, the need to protect not only the individual man, but also his most intimate
and personal social relationships grew. Laws began to emerge that dealt with privacy, the right
to reparation, the protection of labor relations, dignity, and the strengthening of the rules that
protect private law.

4.2 The law in the Middle Ages

Christianity began to gain prominence during the Roman Empire, from the first century
onwards. The examples and all the wisdom of Jesus Christ, alongside his disciples, were spreading
everywhere.

Chapter 4. CHAPTER IV 50

At first, it was seen that his followers were persecuted and punished by the Roman
authorities, but things changed, especially because after some time, Christianity was no longer
spreading only among the poorest classes of the region, but was a reality among all classes.
Therefore, the efforts of the figures of power fell in 313, before the consent of Constantine of
the Edict of Milan, which made a point of guaranteeing to the Christians, who were already the
majority of the Roman community at that time, the Right to worship.

In the middle of 380, the great Emperor Theodosius finally made Christianity the official
religion of the Roman Empire, now under the acquiescence of the Edict of Thessalonica. Almost
15 years later, he ended up separating the Empire into two parts: the Western Roman Empire and
the Eastern Roman Empire, due to conflicts and incompatibility of ideas.

This is how Constantinople became the seat of the Eastern Roman Empire.

And it is exactly at the end of Theodosius’ Empire that the barbarian incursions of
Ostrogoths begin in the Roman domains of the West of the Visigoths. In these incursions, there
were also Franks, Slavs, Hungarians, Angles, and even Saxons. In short, Attila, also known as the
Hun, who was a great conqueror, ended the Roman troops in 451. A little more than two decades
later, Odoacer, a soldier who became king, was victorious over Emperor Romulus Augustulus. It
is then that is decided to end the Western Roman Empire, putting an end to Antiquity.

Although it has gone through the fall and is experiencing the beginning of the Middle
Ages, despite all the crises, Christianity had already spread and established itself in society,
something that did not change even in the face of all the changes implemented in the territories.
On the contrary, the principles of the Catholic Church began to induce individuals to certain
behaviors and to control the morals of society, which was secular. Therefore, its principles also
begin to constitute and interfere directly in the elaboration of laws.

In general, this is how the Middle Ages begins, with the so-called Canon Law, which
begins to dictate the life of an entire society. However, not only Canon Law has a great influence,
since Roman Law resists through Byzantine Law. In addition to them, the Germanic Rights and
some others of lesser impact, such as the Celts, also remain.

What also transformed society and the Law, almost radically, were the Muslim and
barbarian invasions. In the southern region, as well as in Africa and Asia, the incursions occurred
systematically. And at the moment of growth of the so-called Byzantine Law, the entire north of
southeastern Europe did not resist the efforts of the Slavic people.

The Germanic peoples, as well as the Franks and the Visigoths, began to dominate and
establish.

Chapter 4. CHAPTER IV 51

4.2.1 Germanic Law

Before the migrations to southwestern Europe, around the 5th century, the Germans—who
lived east of the Rhine—were an ethnic group that could be considered nomadic, as their legal
system, besides being very poorly developed, was closer to Tribal Law. These people were
organized in a group that we can call a clan. They lived under the authority of the father of the
family, as he was responsible for guaranteeing the security and well-being of the members, and
also held a kind of unlimited sovereignty. These people survived through livestock and agriculture
cultivated by themselves.

Something curious about this clan system is that, quite often, they would start battles
with each other, but they would also come together when necessary. This is how their tribes
were formed. There was a kind of assembly that was responsible for appointing the leader of
that unified group. The decision was based on some criteria: religious, moral authority or even
physical strength.

It can be observed that Germanic Law was all created based on habits. So, if we consider
that we are talking about people who only grouped together when it was strictly necessary, it is
not difficult to conclude that each ethnicity had a different Law, that is, there was no Law that
was of collective application.

There are at least four historical documents that aim to explain how Germanic Law worked
before the invasions: Germanic literal sources, Latin literal sources, Scandinavian customs and
the leges barbarorum. These Latin literal sources present, in Caesar, a greater emphasis on the
military achievements of the Germans; in Tacitus, the most reliable source—perhaps the only
one—that deals with the Law of the 1st century, as well as the institutions of these peoples; and
they also present Latin and Greek writers, such as Ammianus Marcellinus and Dion Cassius, for
example, but who do not contribute so much to our understanding of the customs of this group,
in the historical context.

On the other hand, the Germanic literal sources will try to seek all the legal rules inspired
by old legends added very late to the written documents. Therefore, their sources cannot be
considered so reliable. In summary, between the 12th and 13th centuries, at least, Scandinavian
practices translated the habits of the Germanic people, specifically those in the period before the
invasions, in the most faithful way possible.

The Scandinavian community remains primitive precisely because it was not Romanized
during Christianization. Their practices and customs were still replicated in their courts, by the
elders, who determined the Law because they were knowledgeable of the laws of all those groups.

Chapter 4. CHAPTER IV 52

These laws, also known as customs, present in Germanic Law, were written between the
6th and 9th centuries, precisely the period that follows the invasions. Therefore, they are strongly
influenced by Roman Law.

The leges barbarorum are records of the legal rules of these peoples and can be summarized
in a large written compilation of the practices of the Germanic people. The material was created
with the help of those who “said” the Law at the time.

The law, in general, also ends up becoming a source of Law in the Germanic monarchies
placed in the old Roman Empire. With the growing domination of the Franks, two main sources
of Law will stand out. They are the unique royal legislation for the whole kingdom in question,
and the National Rights, composed of rights, customs, and traditions of the groups.

One of the Germanic peoples, the Lombards, had their practices transcribed by the Edict
of King Rotário in 643. The work was so surprising that it resulted in the most absolute collection
of a Law that is of Germanic origin.

Overall, it deals mainly with Criminal Law. However, it also highlights Family Law, Real
Law and even Procedural Law. Complemented by other edicts over time, we can highlight the
collaboration of King Liutprand.

This collection allowed the entry of Germanic Law into the region of Italy, since the
Lombards, coming from Germany, ended up invading it at the end of the 6th century.

4.2.2 Canon Law

Although we have already addressed it before, we can now delve a little deeper into
Religious Law—of Christian origin—whose precepts are taken from the Bible, both the Old and
New Testaments. It was created after some agreements made during Catholic meetings, also
known as Councils, to control society and expand the control of the church.

Since the creation of this Law sought to understand and reproduce what was in the Holy
Scriptures, it was considered a divine Law. It was applied from the first centuries of the Church.
Therefore, it is undeniable that it was strongly influenced by the basis found in Roman Law.
Canon Law gained special prominence during the Middle Ages, and it is during this period that
the “Religious or Spiritual Law” directs society in various European areas.

It was from this moment that the Catholic Church needed to admit the duality of legal
systems. If on the left was the Divine Law, which

Chapter 4. CHAPTER IV 53

4.2.3 English Law

It was at the very end of the Middle Ages that all of Europe began to realize that new
states were emerging, but they were dominated by monarchs. However, specifically in England,
things happened with some differences.

Power in the region was highly contested for an average of four centuries. On one side
were the monarchs seeking more control, while on the other were the nobles and the bourgeoisie
who sought to avoid such a thing. So, they ended up creating a State that was based both on the
jurisdiction of a representative institution: the Parliament, in this case, and on a set of laws that
was always used as a way to limit the power of the king.

The truth is that each battle for power that was started always presented a very specific
pattern. In short, the king—regardless of who he was—needed to take command from someone
to keep it for himself.

You can imagine that, for this, it was necessary for the kings to persuade the nobles, which
was certainly always impossible to do from a political perspective. So, it will come as no surprise
to learn that this persuasion was carried out by arms. The main difficulty was that a feudal king
always had an army composed of nobles. Therefore, to create a personal army, money would be
needed. And this money came from the taxes paid by the very subjects who reacted.

I argue that, to better understand this part of English Law, more popularly known as
Statute Law, we need to understand some of these internal conflicts. However, to learn about it in
a more complete way, it would be necessary to delve into the formation of the concept of justice,
as well as the development of this nationality.

Unfortunately, there are no records of written codes in England, as we have seen in other
regions and countries. This means that the Law is only presented in a more organized way in
relation to procedural rules. This discrepancy is evidenced in the words of David (2000):

The paradox is that the habeas corpus procedure originally had a different purpose. It was not intended to
guarantee the freedom of citizens, but rather to reinforce the royal authority against the lords. Linked to
the “royal prerogative”, the habeas corpus procedure could never be instituted against detention measures
decreed in the name of the king, however arbitrary those measures might be. (David, 2000)

Do you see any similarities between the original English Habeas Corpus and the institute
of the same name in Brazilian law? I am sure you do.

Chapter 4. CHAPTER IV 54

4.2.4 American Law

4.2.4.1 Declaration of Independence and Constitution

On July 4, 1776, the main political actors gathered in Philadelphia and proclaimed the
Declaration of Independence, drafted by Thomas Jefferson. This declaration is, in summary, a
result of the “self-government”—moved to North America by the Puritans—and the Enlightenment
ideal.

[. . . ] the Declaration of Independence is the greatest expression of the “great Enlightenment”, pregnant
with “unlimited humanism”, reflecting the idea of abandoning manna in heaven in exchange for milk and
bread on earth. Benjamin Franklin, who personified the Enlightenment with Voltaire, participated in the
drafting committee and believed that: “it is impossible to imagine the heights that man’s power over matter
will reach in a thousand years”. Franklin trusted in progress, in man’s ability to develop his knowledge, not
only of nature but of himself, and regretted having been “born so early”. (Aptheker, 1969)

Abigail Adams, wife of John Adams – one of the considered fathers of the American
nation, that is, of American independence – debated with her husband about the privileges
extended only to the male community.

A short time later, in 1778, this formidable woman declared: “I regret this frivolous, narrow, and conventional
education that is given to the women of my country.” Few men in America agreed with this, but there
were exceptions. Among these men were James Wilson and William White, both from Pennsylvania, who
criticized the subordination of women and denied their mental inferiority. And this was around 1768.
(Ibidem, p. 117)

4.2.4.2 The United States Constitution

4.2.4.2.1 The Articles of Confederation

Shortly after the Declaration of Independence, the representatives of the American
colonies were still struggling to decide on the next steps. They faced a major question: how could
they maintain the union of the colonies without violating the “self-determination” clause that had
been so instrumental in their victory?

On the same day that the Congress in Philadelphia appointed a committee to draft the
Declaration of Independence, a new document was created to try to maintain the basis for the
permanent union of the United States of America. This document, known as the Articles of
Confederation, established a union of the states on a very fragile basis. It was published in 1777.

For example, the Articles of Confederation stated that the Federal Government would
not have a Supreme Court or an Executive Branch to interpret laws. Instead, it would only have
a House of Representatives. The problem was that the composition of this House was created
without considering the size or population of the states.

Chapter 4. CHAPTER IV 55

It is important to note that this document also took away from Congress the power to
collect taxes and fees, which it had had while governing the country before. As a result, the
Americans soon became unable to pay off the Confederation’s debts. The situation only became
more difficult as several states stopped adhering to the document. In addition, the loans that had
been taken out from other countries were coming due. When it was possible to get a loan, the
terms were too unfavorable to be considered, especially since the country had no collateral to
offer.

4.2.4.2.2 The Annapolis Convention and the Philadelphia Convention

In an attempt to resolve the issue, the Virginia State Assembly called for a Convention to
be held in Annapolis, Maryland. The main purpose of this Convention was to amend the Articles
of Confederation, at least in the areas that they considered fundamental. However, only five states
attended the Convention. As a result, it was decided to hold another Convention, this time in
Philadelphia, one year later. After this time, it was only Alexander Hamilton – the representative
of New York at the time – who called for the Constitutional Congress.

4.2.4.2.3 The Constitution of 1787

The Constitution created by the Philadelphia Convention was completed in mid-1787. It
was a short document, consisting of a preface and about seven articles. Even so, it was accepted
by 39 of the 55 delegates representing the 12 states present. All of them ended up legitimizing it.

This same Constitution would stipulate that the existing powers should be divided into
three branches: the executive branch, the legislative branch, and the judicial branch. The legislative
branch maintains two well-known chambers: the first is the House of Representatives, also known
as the “House of Commons” or “House of Representatives” in the official language of the country.
The second chamber is the Senate. In addition to creating laws, the Constitution gives Congress
some powers:

The Congress shall have the power to (Article I, Section 8, Clauses 1-18):

• Lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the
common defense and general welfare of the United States; but all duties, imposts, and
excises shall be uniform throughout the United States;

• Borrow money on the credit of the United States;

• Regulate commerce with foreign nations, and among the several states, and with the
Indian tribes;

Chapter 4. CHAPTER IV 56

• Establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States;

• Coin money, regulate the value thereof, and of foreign coin, and fix the standard of
weights and measures;

• Provide for the punishment of counterfeiting the securities and current coin of the United
States;

• Establish post offices and roads;

• Promote the progress of science and useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and discoveries;

• Constitute tribunals inferior to the Supreme Court;

• Define and punish piracies and felonies committed on the high seas, and offenses against
the law of nations;

• Declare war, grant letters of marque and reprisal, and make rules concerning captures on
land and water;

• Raise and support armies, but no appropriation of money to that use shall be for a longer
term than two years;

• Provide and maintain a navy;

• Make rules for the government and regulation of the land and naval forces;

• Provide for calling forth the militia to execute the laws of the Union, suppress insurrections
and repel invasions;

• Provide for organizing, arming, and disciplining the militia, and for governing such part
of them as may be employed in the service of the United States, reserving to the states
respectively, the appointment of the officers, and the authority of training the militia
according to the discipline prescribed by Congress;

• Exercise exclusive legislation in all cases whatsoever, over such district (not exceeding
ten miles square) as may, by cession of particular states, and the acceptance of Congress,
become the seat of the government of the United States, and to exercise like authority over
all places purchased by the consent of the legislature of the state in which the same shall
be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

• And make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof.

Chapter 4. CHAPTER IV 57

The Executive Branch consists of the President and the Vice President. Both serve four-
year terms, but the election was not exactly fair, as not all voters—or even the majority—could
vote for president:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives to which the State may be entitled in the Congress;
but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States,
shall be appointed an Elector. . . (Article II, Section 1, Clause 2)

And let’s note that, to run for the presidency of the country, the individual needed to be an
American (native) and already be at least 35 years old. Like any other elected official, the president
will receive a salary for performing this role; however, in no way could he receive any object
or some besides the payment determined by law. The president is also the commander-in-chief
of the armed forces. In addition to having power in hand, he can initiate or conclude treaties,
provided they have been previously accepted by at least two-thirds of the senators.

As for the Judiciary Power, it was determined that it is responsible for overseeing the
enforcement of laws, as well as convicting the guilty whose crimes are proven. It was decided
that it would be composed of a Supreme Court and smaller courts. The Supreme Court may,
depending on the situation, exercise original jurisdiction, but in some other cases, it will be
appellate.

The jurisdiction of the Judiciary Power shall extend to all cases arising under the Constitution, the laws of
the United States, and treaties made, or which shall be made, under their authority; to all cases affecting
ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to
controversies to which the United States shall be a party; to controversies between two or more states,
between a state and citizens of another state, between citizens of different states, between citizens of the
same state claiming lands under grants of different states, and between a state, or the citizens thereof, and
foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make. (Article II, Section 2, §§ 1; 2)

Crimes, with the exception of impeachment proceedings, are constitutionally guaranteed
to be tried by a jury. Therefore, states are required to transfer suspects to another state of the
Federation. On the other hand, the American will have the rights and duties of a citizen of a state
while in its jurisdiction.

4.2.4.2.4 The Electoral College

In the original system, each state appointed electors equal to the number of its
representatives and senators in Congress. These electors then voted for the president and vice
president. This system was known as the Electoral College.

Chapter 4. CHAPTER IV 58

4.2.4.2.5 Why was the Electoral College created?

The Electoral College was created as a compromise between those who wanted popular
elections for president and those who wanted the president to be chosen by Congress. The
Electoral College gave more power to the smaller states, as each state had the same number of
electors regardless of its population.

4.2.4.2.6 Criticisms of the Electoral College

The Electoral College has been criticized for being undemocratic, as it is possible for a
candidate to win the popular vote but lose the election. This happened in 2000, when Al Gore
won the popular vote but lost the election to George W. Bush.

4.2.4.2.7 Reforms to the Electoral College

There have been several proposals to reform the Electoral College, but none have been
successful. Some people believe that the Electoral College should be abolished, while others
believe that it should be reformed to make it more democratic.

4.2.4.2.8 The future of the Electoral College

The future of the Electoral College is uncertain. It is possible that it will be abolished or
reformed in the future, but it is also possible that it will remain unchanged.

59

5 CHAPTER V

5.1 The history of law in Brazil

No matter what they tell you in schools or how they try to mask the truth, the colonization
of our country is marked by aggression and the economic, cultural, and political exploitation of
one group by another. Of course, it happened just like that in many other territories.

However, here this exploitation has European culprits, such as Holland, Portugal, France,
and many others who were vying for land. In summary, the history of colonization in the Americas
begins around 1492, as this was the period when Christopher Columbus, amidst an expedition to
India, found Cuba, Hispaniola, and the Lucayan islands. All these lands held great potential and
would later form a specific continent.

After years of exploration, voyages, and more navigation, the existence of a new continent
between Western Europe and East Asia was confirmed. This information sparked chaos because
it led to a battle between European groups vying to dominate the still unknown lands.

And that’s how, sometime later, our country found itself as a colony of Portugal. The day
after Pedro Álvares Cabral docked at the Island of Vera Cruz in April 1500, he met with the
native peoples and was warmly received by the groups. At least, that’s what his scribe, Pero Vaz
de Caminha, claimed.

This episode marked the beginning of the Colonial Period of Brazil. Initially, it was a
moment of interaction and cultural exchange between foreigners and indigenous peoples. Some
people are unaware that this contact initially occurred, and only in 1530 did the coastal territory
of the country begin to be explored by the Portuguese.

I must mention that some researchers and scholars of Brazilian history still wonder about
Cabral’s true intentions in coming here. Did he really want to reach our lands, or—for whatever
reason—did he merely change the course of his ships from his main route to anchor here?

In any case, the invading Europeans decided to traverse the lands and assess the available
resources. The Portuguese chose to exploit “Pau-Brasil” (wood) initially because, until that
moment, it was the only product found that could serve any purpose. And, if you’ll pardon the
expression, they even requested the assistance of the indigenous people to extract it. In return
for their hard work, they were given various pieces of fabric, ornaments, and small, worthless
utensils.

The extraction of “Pau-Brasil” for sale lasted for thirty years.

Chapter 5. Chapter V 60

At that time, the French, and Portuguese continued in an endless dispute to end the
competition and the right to all raw materials. The greed of those peoples was too great for them
to reflect, for a moment, on the consequences of those constant extractions of everything that
grew, lived, and was created in Brazilian lands.

Colonization itself began in 1530. It occurred when the king of Portugal at the time
determined that, to ensure that the lands remained theirs, it was necessary to create “settlement
nuclei” that were permanent because, in addition to continuing the colonization process, they
would be there to defend the territory.

It was realized that it was necessary to produce a structure that delineated effective
measures for the population, as well as to establish powers, after all, it would not be easy to
colonize a “primitive” land that had no social or economic development. Apparently, the answer
to this was the creation of sugar mills for the production of some materials, where the workforce
was mostly enslaved.

Of the hereditary captaincies existing at that time, only two sustained themselves. One
was located in São Vicente, while the other was in Pernambuco.

To conduct municipal administration, Municipal Chambers were created, which at that
time were composed of three councilors elected by the votes of the so-called “good men”. They
were almost always landowners and rarely gave voice to what the workers—or the slaves—had
to say. In 1549, the Jesuits arrived in Brazilian lands alongside Tomé de Sousa. The period of
Christian religion in Brazilian history began.

5.1.1 Disorders in the Colonial Period and the Independence of Brazil

The society of the colonial period already showed some signs of progress and development
as a community, even experiencing a scenario of obvious social inequality. When the gold cycle
began in the sixteenth century, it was already suspected that the Portuguese came to stay, but it
was during the coffee cycle that it became clear that they had indeed established themselves in
the country.

As one might imagine, a substantial part of society did not enjoy the same rights or
freedoms as the Portuguese, such as the black people, slaves, indigenous people, and others who
lived being subjected to forced manual labor. Faced with endless exploitation, dozens of revolts
occurred, aiming to demand equal freedom for all and rights to protect individuals.

We have the example of the Beckman Revolt (1684) in Maranhão, which started due to a
lack of food for the people. There was also the War of the Mascates, which lasted just over a year

Chapter 5. Chapter V 61

in Pernambuco. This was a battle between Olinda—where the landowners who held plenty of
land lived—and Recife, the home of the traders of the time.

I believe that among all the most important revolts, the Inconfidência Mineira can be
used as an example of a revolt with the greatest repercussion for the history of struggles for the
people’s rights against Portuguese monopoly. If you don’t remember what happened during that
period, here’s a brief summary: the rulers did not hesitate to force slaves to work in spaces where
there were no conditions for survival. Meanwhile, the landowners of greater prominence and
who held the greatest privileges remained submissive to Portugal.

The agitation was fueled by the desire to become independent of Portugal and to end
unequal rules and the abusive taxation by the Portuguese Crown, which were considered obstacles
to Brazil’s economic development at that time. In short, among the various reasons justifying
independence, what stands out is precisely the urgency of Brazilians of Portuguese origin
to preserve their integral supremacy. Of course, in addition to the desire to expand business
with various countries in pursuit of achieving financial freedom. And that’s why the country’s
independence was supported, for example, by England, which had an interest in expanding its
industrial trade.

The political independence of Brazil arises primarily from the economic, social, and political transformations
that occurred in the Colony during the 18th century and the sharpening contradictions that these changes
provoke between the goals of the metropolis and the interests of the Portuguese-Brazilians settled here, as
well as the weakness of Portugal and the transformations generated by the advancement and consolidation
of the Industrial Revolution in Europe, to whose interests our economy is linked. (Brum, 1988)

The Independence was a slow process and occurred between 1821 and 1825, in a scenario
of great animosity. The date established as the occurrence of the separation between Brazil and
Portugal is September 7, 1822, due to the famous cry on the banks of the Ipiranga River. But
negotiations and adjustments still continued for some time afterward, leading to the beginning of
the Brazilian Empire, with the government of Dom Pedro I and later with Dom Pedro II.

5.1.2 The Fall of the Empire and the Constitutions

The downfall of the Empire in 1889 made it possible for Brazil to proclaim the first
Brazilian Republican Constitution. It was precisely already that the provisional government of
Deodoro da Fonseca was established. During this period, Deodoro established new precepts for
the State and chose the Federative Republic as the political regime for the country, in addition to
changing provinces to states, and making several other significant decisions, one of the most
relevant being the reformulation of the Penal Code.

The newest Constitution had as its main feature the decentralization of powers, granting
states and municipalities a level of autonomy, as well as establishing direct election of members

Chapter 5. Chapter V 62

of the legislative and executive branches.

What we know as Public Law in Brazil was strongly influenced by both the French
and American revolutionary movements, as well as by the various organizations that were
created throughout the 18th century, especially those advocating for a more liberal—and even
individualistic—philosophy.

Eventually, the State also gained new responsibilities.

The 20th century established the democratic and participatory regime as the preeminent model of political
organization. [. . . ] The expansion of freedom is seen, by this approach, as the main end and the main means
of development. Development consists of eliminating freedom deprivations that limit people’s choices and
opportunities to exercise, thoughtfully, their condition as agents. (Sen, 2000)

The social context of the time, filled with changes and many battles won and lost, ended
up making it obvious the real demand for the building of the main institutions, that is, institutions
of law, economics, and others. In other words: the increase in the number of freedoms, both
civil and political, and their expansion were due to ideological, legal, and social issues that were
relevant at the time.

The next Brazilian Constitution was that of 1934. This time, the desires of the landed elite
were also considered instead of the interests of the middle class or the movements still fighting
for equality and citizenship. This Charter meant a huge advancement for the workers, after all, it
was through it that they finally had their rights expanded, especially after ensuring — during the
government of Getúlio Vargas — the creation of unions and a specific value for the minimum
wage.

It is interesting to mention that this Constitution was inspired by the Constitution in force
in 1917, in Mexico, and the German one, from Weimar, of 1919. It was from this that the social
perspective of Law began to gain voice in Brazil.

Well, in the mid-1937s, the president of the time instituted the military dictatorship of the
Estado Novo along with another Constitution; however, this one had a differential: it was flooded
with tyranny and the return of centralized power.

The truth is that it was only created to guarantee the president’s sovereignty and protect
him. Therefore, the decisions promoted a dictatorial regime of Law, in which society, in general,
could not have any participation in the political decisions taken.

It is no wonder that the death penalty was established, clearly as a way of intimidating the
people, and that the elections became indirect again, where Vargas would be the one to elect his
successor to govern the country.

Chapter 5. Chapter V 63

Thus, it was necessary for the government to be able to get rid of those who opposed the
regime, threatening the centralization of power. Therefore, the president found himself in a
position to act as Executive and Legislative, as well as being able to dissolve the National
Congress. That was how he disbanded political parties, removed all freedom of the press, and
conceived prior censorship.

64

CHAPTER VI

5.2 Law Depicted

5.2.1 Law in Cinema

Some believe that cinema is nothing more than a form of entertainment, while others
advocate for the use of arts and literature for the transmission of knowledge. But is it possible to
make legal arguments through cinematic works?

We have seen that it is indeed possible.

There are numerous works in which the law is shown, questioned, and experienced. And
note that I said experienced, not represented, as it is common to come across movies and TV
series where a trial is simulated in nonexistent rites or the civil and human rights of someone are
violated. However, I am referring to those that make us think and learn, study and inspire us.

Why not work with examples?

“The Crucible” is a 1996 film based on a play that discusses the trial of dozens of women
and young teenage girls accused and convicted of witchcraft in 1692. In this film, it is possible
to come across a judicial process that marked a collective hysteria in the United States. The
trial sessions were filled with mutual accusations, most without precedent, much turmoil, and
reprisals, as there were many cases where people used the situation to harm their enemies, even
if it meant condemning them to death for something that was not real.

To get an idea of how out of control the situation got, there are records that a pastor and a
5-year-old child were arrested for practicing witchcraft. Not to mention the numerous deaths by
hanging and stoning.

The “trial” only ended when a new governor arrived. His predecessor dissolved the Court
of Oyer and Terminer and instructed his successor to disregard any supernatural evidence they
wished to use. Some time later, the court decided that those trials were illegal. Then the prisoners
were released, and the colony was apologized to. However, the damage was already done.

Some things would originate from there.

Scholars even argue that the plea bargaining in the United States originated from the
inquisitorial doctrine seen in this tragic and emblematic trial. For a deeper understanding of the
issue, it is necessary to verify a historical reconstruction that dates back to that period in the

Chapter VI 65

country.

Back to movie examples, we have classic feature films like “Kramer vs. Kramer,” whose
aim was to exemplify, mainly, how the mother is always favored in divorce cases, especially
when child custody is at stake. It is possible to see the elegance with which the trial sequence
in the third act was conducted, as well as how powerful the clashes between husband and wife
were. This was a film whose content managed to penetrate not only the legal world—addressing
the dissolution of marital union, Civil Law, and Family Law—in order to convey realism to the
viewer but also succeeded in penetrating the viewers’ psyche.

And why not a more recent example, especially for streaming fanatics?

The Spanish film “The Invisible Guest” is a thriller from 2016 that tells the story of
Adrian, a successful professional who sees his life turned upside down when his lover is found
dead in the same hotel room where he had seen her. The woman’s death does not seem to have
been a suicide nor natural, so homicide seems to be the only way out for an investigation.

The plot has an engaging storyline that makes the viewer create dozens of theories as the
hours pass, only to be completely surprised by the ending. Additionally, the film exposes the
figures of perjury, false identity, and homicide.

Although Brazilian legislation does not have the figure of perjury, we know that American
legislation — and that of several other countries around the world — characterize perjury as the
act of prohibiting the accused from lying. Brazil has constitutionally adopted the principle of
nemo tenetur se detegere, that is, the right to remain silent or lie. This means that no one needs —
or should — build evidence against themselves.

Here, only lying is condemned when found in the crime of false testimony, thus leaving
the suspect free to theorize their version of the crime attributed to them. “The Invisible Guest”
also explores the crime of false identity, which is quite different from the crime existing in Brazil,
of ideological falsehood, it is worth noting.

Article 307 of Decree Law No. 2,848, dated December 7, 1940, in Brazil, states that:

To attribute oneself or a third party a false identity to obtain an advantage, whether for one’s own benefit or
another’s, or to cause harm to others. Penalty – imprisonment from three months to one year, or a fine, if
the act does not constitute an element of a more serious crime.

You see how it’s always possible to find an example, a mention, a reference? The
connection between Law and cinema, specifically in the field of juridical zetetic study, enables the
development of a greater capacity for interpretation and critical reflection on various themes and

Chapter VI 66

manages to unite the impact of plots with the rational reflection of the individual. In other words,
it is plausible, to a certain extent, that the approach of legal texts to the analysis of films with
artistic quality not only represents examples of concepts but also allows for critical expansion of
the issues proposed therein.

In the realm of transitional justice or international law, there are also some immensely
valuable options, such as in Schindler’s List and the moving drama The Boy in the Striped
Pajamas. The latter, in particular, can be a perfect example of a feature film where one can deeply
reflect on the legal aspect concerning human dignity, tolerance amid the Nazi regime, and ethics.

However, it is important to be cautious when trying to understand the History of Law or
how its practice unfolds, especially when films or TV series are used as research instruments.
Generally, there is not a real concern for the perpetuation of knowledge but rather for the
entertainment of the viewer. It would be naive to believe that the team behind these productions,
aimed at audience, popularity, and profit, is truly interested in conveying the truth as it is,
especially when referring to a short period of time. Films will always be used, first and foremost,
to develop stories and characters so that the audience identifies and remains faithful to the
proposal, not to describe – in detail – the legal information in the era of specialization.

I would also draw attention to the difference in purposes, as I have no desire to campaign
against films or books. Especially because I consume various films and series and recognize the
benefits derived from all experiences.

However, I recall that when I was in my first year of law school, I was required to read
a book written and published by Drauzio Varella as mandatory reading for an assignment. It’s
called “Carandiru Station“ and it exposes part of his experience as a healthcare professional
in the eponymous prison. You’ve probably heard of this place, as the detention center became
very famous due to so many riots, tragedies, and true military battles that resulted in a bloody
massacre.

A few years later, starring Rodrigo Santoro, a famous Brazilian actor, the movie “Carandiru“
premiered in theaters. I, of course, did not miss the opportunity and watched the adaptation on
the big screen, and I was disappointed with what I saw. Besides having the distinct impression
that not even 30% of the content that formed the basis for the project was really there, I noticed
a great concern with a love story between the inmates. Therefore, this would not leave much
room for narrating the main aspects of the book. The movie is great, so much so that I ended up
watching it more than once, but it doesn’t represent the book even remotely. The two are like two
completely different works, as it is clear that the people who developed both productions also
had very different objectives.

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So, I ask you to reflect on the following point: if something like this happens with a
relatively recent work, where not only the author but various characters and those involved are
still alive to clarify any misinterpretations and point out discrepancies in the story told, imagine
when it is no longer possible to have access to the people who lived through that context? Thus,
it is up to the investigators or the screenwriters alone to decide what happened, or rather, to adapt
the stories to the facts to meet what will generate the most profit.

So, yes, of course, we can enjoy dozens of cinematic works with Law as the basis for the
plot because some of them truly strive to reproduce how justice operates in the real world, but
I reinforce that they should not be used as a benchmark for anything. Perhaps they serve as a
source of inspiration, but never believe that things were or are that way. It takes discernment to
know how to separate what is history, what underlies Law, and what is fiction produced to cater
to an audience based on literature, especially when it comes to stories that relate real situations.
In any case, both cinema and the arts in general are powerful instruments of social criticism and
increasing the effectiveness of thought. So, it will not be in every situation that art forms will be
used to propagate the trivialization of Law.

In these cases, the “artificialism” used should not be confused with the total exclusion of
reality, nor with the complete disregard of theories that study Law through a more critical and real
bias. Far from it, as the study of cinematic language provides an incentive for the interpretation of
social reality and does not confine itself to writing. This type of study becomes very valuable for
those who work in legal environments where there is a predominance of interactions in hearings,
trials, or in environments where rhetoric, dissimulation, and manipulation of people’s senses are
valued.

However, it is widely known that law students, influenced by pedagogical blindness, are
encouraged to focus solely on textual interpretation, as if images and contexts were not going to
be part of their daily life as professionals. According to what Lacerda (2007, p. 8-9) explains on
the subject, law schools in our country still do not consider cinema as a valid and worthy didactic
instrument to be present in the classroom. However, the author remains confident that the seventh
art can also be a valuable resource for classes.

[. . . ] first and foremost, it is therefore inviting the student to cast a legal gaze upon cinema. Making cinema
not only entertainment, but also a focus, a source, an arena where it is possible to discover, discuss, criticize,
be satisfied, and frustrated with themes, professional situations, and dilemmas of law and its practice. [. . . ]
Cinema is also law, it is class material, it is a didactic tool.

That’s because cinema refines its language and develops forms of expression that are
taking on a different tone, far removed from what was previously used by the industry. Used
as a form of reflection, cinema allows for a deeper exploration of the denser layers of reality,
economic arrangements, society, values, and cultures.

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This is why cinematographic art affects the viewer so much.

One would be mistaken to believe that the realism “on screen” lies in its ability to capture
reality as it appears, because where it is truly effective is in portraying deeper and more essential
layers of reality. Thus, we can draw a distinction between the objective reality that life offers us
in its broadest sense and the image of reality that cinema shows us through screen representation.
One shows reality while the other shows fiction (Alea, 1984, p. 63).

Although some producers choose to ignore this possibility, cinema also aims to convey
a certain ideology, even if very subtly. And so we see a Law loaded with ideologies, such as
European law, Muslim law, canon law, and many others.

The individual who masters Law can make very well-thought-out arguments because
the student who is familiar with legal language can manipulate it for their own benefit, in order
to obtain the listener’s consent. Faced with such an obscure and complex current context, we
witness firsthand dozens of juridico-political authenticity problems that not only challenge the
authority of laws but also their connection to institutional morality.

With this in mind, I warn that the future legal professional will be required to have more
than just a broader perspective of legal and interdisciplinary studies, but an expansion of their
sensitivity as a human being. Although the current curriculum of universities is becoming more
balanced when it comes to zetetic and dogmatic legal disciplines, it can be observed that, in
practice, an approach between them has not been effectively achieved.

Returning to artistic expressions, the language used by the seventh art can be worked on
through the perspective of cultural enrichment of the Law student or the professional already
working in the field, as an additional part of their basic zetetic formation. Given this reflection,
we can conclude that using cinema as a way to approach legal science is seriously interesting,
as cinematographic works are in constant balance with contemporaneity. All that has been
mentioned only reinforces the belief that cinema can—when used intelligently, strategically, and
in the right doses—be a tool of remarkable effectiveness for debate and teaching to students.

5.2.2 The link between law and literature

Perhaps you, as a law student, may be wondering what literature could have to teach
young jurists. Do not worry, as this is a valid question, considering that studies on this theme in
Brazil are still recent and less numerous, especially when compared to those conducted in the
United States, for example.

I note that a milestone in these studies in the country was the creation of “Direito &

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Literatura,“ a talk show from 2008, broadcast on TV Justiça and hosted by Lênio Luiz Streck.
The program provided a platform for the host and guests to discuss contemporary legal issues
using both national and foreign literary works.

Lênio Streck and the program’s producer, André Karam, subsequently released a book
called “Direito e Literatura: da Realidade da Ficção à Ficção da Realidade” (Law and Literature:
From the Reality of Fiction to the Fiction of Reality). The idea was to gather articles and
arguments to highlight the link between reality—with an emphasis on legal, social, and political
aspects—and fiction.

It is important to bear in mind, then, that literature is part of every act that can be observed
in everyday life, as well as being rooted in every area of knowledge.

If by some excess of socialism or barbarism, all our disciplines were to be expelled from education, except
one, it is the literary discipline that should be saved, for all sciences are present in the literary monument.
(Barthes, 1980, p. 17)

Even though there are few who admit the essential role that literature plays in shaping
individuals and, consequently, jurists, we can observe that this partnership can be analyzed in at
least two different ways: Law in literature as a way for citizens to use the habit of literary criticism
to better evaluate judicial procedures, institutions, laws, and rights; and Law of Literature, that is,
as a way to analyze and work on the rights of an author and their work, as well as the explored
theme and the author’s freedom of expression, which must be guaranteed.

In the same vein, Vera Karam Chueiri states the following:

Law and Literature can refer both to the study of legal themes in literature, in which case it would be
referring to Law in Literature; as well as to the use of literary criticism practices to understand and evaluate
law, legal institutions, judicial procedures, and justice, in which case it would be referring to Law as
Literature. In the first case, it is the content of the literary work that interests the law, while in the second
case, the narrative form of the work itself can serve to better understand legal narrative, such as the
sentences constructed by judges. (Chueiri, 2006, p. 234)

This link between the areas began to be studied in the 1970s in the United States, with
the creation of interdisciplinary courses and academic subjects aimed at theorizing about this
relationship. This study gained strength through the interest of universities and the space provided
by them for these areas to become the object of theses for students and teaching tools for faculty,
as well as fostering the expansion of the field of legal knowledge.

Given that answers and explanations for concrete conflicts and diverse situations are
regularly demanded of legal professionals, it is believed that Literature is effective in opening up
greater space for critical analysis, precisely because it is more sensitive to the particularities of
the human being.

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[. . . ] the Law came to be understood as a powerful means of communication and cultural integration, thus
performing the role of literature; while, on the other hand, literature continues to be considered an essential
element for the construction of a sense of community, which inevitably links it to the function of Law.
(Gubert; Trindade, 2008, p.55)

Well, these law-literature investigations, also known as Law and Literature, began in US
law schools in the 1970s with the intention of fostering greater sensitivity not only in politicians
but also in jurists through the dissemination and reflection on literary works.

A truly important moment for the study of this theme occurred with the publication
of “The Legal Imagination” (1973), authored by law professor and literary critic James Boyd
White. It wasn’t foreseen, but the content of the text became a testimony in favor of the Law and
Literature movement, as White discussed law based on literary pieces by authors such as Henry
Adams, Jane Austen, Geoffrey Chaucer, Marlowe, Herman Melville, Shakespeare, Tolstoy, Mark
Twain, Shaw, and many others.

With the growing interest in the Law and Literature movement, various courses were
created around it, and the discipline “Law and Literature” was introduced into more contemporary
university programs. Additionally, research centers and new academic departments emerged to
study the relationship between Literature and Law as an object of study.

In Brazil, this area of study continues to grow and is attracting an increasing number
of scholars. The movement resembles what is also happening in some European countries.
Nevertheless, the pioneers of this initiative in the country are considered to be Eliane Botelho
Junqueira and Arnaldo Sampaio de Moraes Godoy.

But of course, you will encounter names like André Karam Trindade and Germano
Schwartz in most of your research, as these are the two individuals who have contributed the most
material to both areas. After all, events and conferences offered by law courses in the country
also provide a platform for the presentation of productions focused on this field of study.

The relationship and discussion of law in literary works can be found in nationally
prestigious works, such as Graciliano Ramos’ novel “Vidas Secas” (Barren Lives). Published in
1938, it tells the story of three characters: Fabiano, his wife Sinhá Vitória, and their children. The
group, accompanied by their dog named Baleia, is constantly moving from one region to another
to escape the drought.

Poverty, inequality among the community’s divisions, hunger, and social problems are
exposed in the narrative, which highlights both the Brazilian reality of the time and social
injustice. The novel prompts reflection on the obvious inequality regarding the rights present in
various segments of the depicted society, as well as how the characters’ deprivation of speech

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contrasts with the excess of authority and law.

This is just one example of how literature has become a means of conveying both positive
aspects of the law and exposing its gaps and weaknesses, also depicting situations of justice and
injustice in certain cases. Literature, sometimes unwittingly, brings forth questions of law, ethics,
and morality in the form of stories, where contexts can be contemplated in which the application
of the law has proven unethical or contrary to societal conscience.

This is why many contemporary researchers argue that literature plays an important role
in reforming law. Although many believe that much jurisprudence can be learned from reading
and understanding literary works, some also believe that literature only presents a distorted image
of what we know as law.

A curious fact is that regardless of whether we are talking about Homer, Shakespeare, or
Sophocles, “revenge” has been the central theme that affects certain legal aspects.

Sophocles, in his famous play “Antigone,” made a distinction between divine law and
human law in a conflict situation between the rules.

Shakespearean courts also dealt with issues that encompassed certain legal tones. The
story of the pound of flesh, for example, in “The Merchant of Venice,” has been considered by
many as a specific performance example.

The dominant premise in “King Lear,” also by the same playwright, can be interpreted
as the variation between man-made law and natural law. The latter is considered equivalent to
morality, something that reflects a conflict that prevails in legal systems worldwide to this day.

Some individuals are familiar with, or at least know of, Dostoevsky’s celebrated “Crime
and Punishment,” especially since the work received worldwide acclaim. Although this is not a
book that deals with the law in the same way as Kafka’s “The Trial,” as the title suggests, the
book still provides something akin to criminal law, although the character’s condemnation results
from his conscience, not the law.

Now, a literary plot considered by many as a focal point in this relationship between Law
and Literature is Charles Dickens’ dark novel “Bleak House,” as it presents a judicial process
that offered some loopholes in the legal system through a more ironic humor.

The Theban Trilogy: “Oedipus Rex,” “Antigone,” and “Oedipus at Colonus,” plays by
Sophocles, can provide surprising support to teachers, especially in disciplines that address areas
of Family Law or Psychology applied to Law. Teachers will constantly be led to reflect, on their
own, and to debate about the role of the individual regarding the risks that tyranny poses to

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democracy, the role of the feminine, and even about the entire conflicting issue between Religion
and the State.

And why not mention the classic “1984”? Orwell’s most popular work.

In this book, you can delve into a universe of reflection on themes that address society: the
power held by the State, manifested in a totalitarian regime; subjectivism; the theft of individual
freedom; among other topics. All of these subjects can be well (and very well) used in disciplines
such as General Theory of Law, Philosophy of Law, and even Constitutional Law by providing
space for discussions about the idea of justice, voluntary servitude, and social control.

Although Law and Literature deal with opposite things, as one is based on reality and
the other is not, both originate from a problem. According to Godoy (2008), “the relationship
between Law and Literature suggests that classical conceptual boundaries be abandoned” in
the sense of overcoming existing difficulties in approaching the “abstract logic” of Law and the
“fictional” characteristic of Literature. It is an ambitious path that can lead, according to the
author, to the unexpected, not forgetting the challenge of creating an interdisciplinary field of
research.

Viewing Law from another perspective, according to Trindade (2008), “is the challenge
posed to jurists,” also highlighting the relevance of creating an interdisciplinary space that is
based on the intersection of Law with other areas of knowledge, “establishing a critical space
par excellence, through which it is possible to question its assumptions, foundations, legitimacy,
functioning, and effectiveness” (Ibidem, 2008).

Robert Weisberg, one of the foremost American scholars of the Law and Literature
movement, asserts that Literature is universal and general, addressing themes of all kinds, with
Law being one of them. However, these general aspects in Literature lack specific and defined
details, as it, encompassing legal elements, is not a lawyer’s Law but a layman’s Law. Nevertheless,
sometimes, Literature serves social purposes.

The interdisciplinary study between these two universes creates an environment in which
students and teachers find the opportunity to work with situations that are often sidelined in legal
education. This enables the exploration of other contexts and the consideration of the numerous
variations of the legal phenomenon.

Literature promotes a new way of solving the problems faced by jurists on a daily basis. A
way that norms, even in the face of customs and other sources of legal knowledge, cannot resolve
on their own.

Literature is thus attributed with the difficult task of enabling the reconstruction of places of meaning,

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which in Law are dominated by a theoretical common sense that amputates, castrates, and restricts the
interpretative possibilities of the jurist, as it operates with a set of preconceptions, beliefs, fictions, fetishes,
habits, stereotypes, representations that, through legal doctrine and scientific discourse, anonymously
discipline the social production of the subjectivity of law operators and legal knowledge, whose tradition is
that “no man legitimately utters words of truth unless he is (recognized) by a scientific community, or a
monastery of sages.” Gubert; Trindade (2008)

In other words, as if it weren’t enough for Literature to contribute to increasing the level
of knowledge of the jurist in question, it is essential in making them more sensitive to the world,
especially since it grows, in the individual, a quota of humanity. Literature, much more than
playing an important role in the cultural progress of global society, helps the jurist develop their
perceptions in the face of the dilemmas encountered in the study of Law.

On one hand, the function of Law is to stabilize social expectations, in pursuit of legal security, resulting in
the freezing of time, the imprisonment of senses, and the phallic extermination of emotions and affections;
on the other hand, literature has a fundamentally heuristic function, aimed at creating, innovating, criticizing,
surprising, astonishing, dazzling, disturbing, shocking, disorienting, ultimately, moving. (Gubert; Trindade,
2008)

One of the characteristics that stands out in this dialogue between Law and Literature is
precisely the possibility that Literature provides to broaden the student’s worldview through its
imagination.

The capacity of literary works to incite the reader’s empathy towards narrative events and characters in the
stories told enables them to participate – safely – in the lives of others, experience other situations, and
consequently, reflect and position themselves critically about fundamental issues of the practical world.
(Gubert; Trindade, 2008, p. 54)

In other words, Literature expands the knowledge of the community, especially that of
legal professionals, by facilitating the improvement of their skills, thanks to its ability to anticipate
some cases in fiction. This allows them, through reading, to create theories about the situation
addressed, which will facilitate the resolution of problems in daily life. In summary, it is marked
by its obvious ability to guide individuals’ worldview, as well as to explore values, meanings,
cultures, and lifestyles.

We can conclude that Law and Literature, immersed in a blend of human reality, are
mutually and constantly influencing each other.

The use of literary works in Law courses is just one of the many possibilities arising
from this relationship because it is believed that Literature needs to maintain this connection and
dialogue with legal education for reasons such as that every jurist needs a formation.

It is in this formation that they can broaden their horizons of interpretation because
understanding Law goes far beyond their manuals, dogmatism, and the application of norms. To

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conclude the topic, it is also worth noting that Law should resort to Literature, primarily as an
attempt to avoid at all costs the possible stereotypes and generalization of current legal social
problems, as this enables, through contact with narratives, the breaking of patterns. Certainly, this
break will be more beneficial in the long run than remaining stuck only in the “schematization”
of legal knowledge.

5.3 The importance of legal story for the young jurist

To conclude this brief journey through some of the paths that Law has traversed — as
there is still much more to see! — we can reinforce the idea that the study of Legal History, as a
discipline, is fundamental in Law courses. After all, especially now, it seems clearer than ever
that History and Law have always been side by side.

In other words, when one emerged — even if rudimentary and confusing — the other
was there to record it and follow it through the next eras. It’s as if one was born shortly after
the other, and since then, they have complemented each other. After all, History provides the
foundation and explains why Law is what it is and why it has the function it has. It, beyond being
a legal science, is a set of rules aimed at ensuring security and social control. History can justify
its necessity.

Let’s observe what Maciel and Aguiar (2007, p. 22) say:

The primary function of Legal History in the training of law students lies in the denaturalization of
permanence or evolution, making the jurist observe that Law is related to its time and context (social,
political, moral), and that Contemporary Law is not a new version of Roman Law or an evolution of
Medieval Law, but rather the result of a complex of relationships present in society and progresses alongside
the inducing forces capable of modifying it, transforming it, and revolutionizing it.

Furthermore, the discipline of Legal History needed to be created, as it will present and
explain all occurrences recorded in specific periods, in order to elucidate the process of legal
evolution; however, it is perceived that this occurs more comprehensively when we have access
to records of how Law unfolded among the various civilizations of which we have knowledge.

With this goal in mind, it is necessary to study legal sources and certain legal institutions,
such as marriage and proportional penalties for offenses, for example. Anything related to the
emergence of normative principles and citizen rights should always be considered.

As an example, we can say how crucial it is to have knowledge of the Greek foundation,
which contributed so much to Philosophy and Law, behind what we, present or future professionals,
will apply in our daily lives. This also leads us to the fact that it is essential to see how the
formalizations carried out by the Romans fostered Law. If you believe in the idea that looking at

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the past and analyzing the present can help shape the future, in our context, studying the trajectory
of Law throughout history seems to me the best alternative.

I think so, especially because it is possible to gain a historical understanding that
encompasses much more than your main area of study. By accessing the peoples and the means
used to establish so many fundamental pillars, you build knowledge that will be useful when it is
necessary to maintain Law from time to time.

Not only Legal History as a discipline, but also the great historians, researchers, and
teachers who tirelessly produced on the subject, wish for the learner, with access to the materials,
to find what should drive every legal practitioner, namely, morals and ethics. After all, when this
young person is able to ensure that they are contributing to maintaining the integrity of families,
ensuring harmonious relationships among people, and ensuring that individual and collective
rights are respected by society, we will all have achieved this goal.

76

6 CONCLUSION

The study of Legal History reveals itself not merely as an academic endeavor but as a
vital tool for understanding the evolution of law and its role in shaping the structures of civilized
society. By tracing the legal traditions that emerged in ancient civilizations, such as Babylon,
Greece, and Rome, and by examining the subsequent influence of canonical, feudal, modern,
and contemporary legal frameworks, we gain not only historical knowledge but also the critical
capacity to reflect on the legitimacy, function, and transformation of legal institutions.

This article, based on bibliographic research and supported by both foundational texts and
contemporary interpretations, sought to present the relevance of Legal History as a discipline that
transcends mere chronology. It enables jurists to comprehend the legal phenomenon as a product
of culture, politics, economy, and moral values. Understanding the origins and developments of
legal norms helps identify the deeper reasons behind current legal structures, and allows for the
formation of more conscious, ethical, and context-aware legal professionals.

Through this historical lens, we reaffirm that law is not static, but dynamic—deeply
influenced by time and society. The very concept of justice, once associated with divine or
authoritarian models, has evolved to accommodate more inclusive and pluralistic interpretations.
This demonstrates that legal knowledge, to be fully understood and effectively applied, must be
rooted in historical consciousness.

Therefore, Legal History should not be treated as an ancillary component of legal
education. It is an essential foundation for anyone who seeks to understand the present state of
the law, contribute to its improvement, and participate responsibly in its future development. By
embracing the historical journey of law, we not only preserve memory but also cultivate the
critical spirit necessary to question, transform, and advance legal systems in service of a more
just and equitable society.

77

NOTES

[1] The works of Homer, especially The Iliad, bring historical elements so faithful that they
confuse researchers about the truth of what occurred. However, there is certainly a more in-depth
current sustaining that Homer, as a writer, may not have even existed, since the origin of his
name derives from the root “omer,” which would mean “to speak” or point to a geographical
origin in the Middle East.

[2] Translation by the author.

[3] I employ the term in a religious sense because, according to some doctrines of incorporation,
it would be possible for a skillful human, attributed the name of medium, to have contact with
spiritual beings and, thus, serve as a bridge between the world of spirits and the physical world.
According to the belief about this technique, it would be possible to give voice to the thoughts of
spirits who lived in other eras, partially or entirely removing the medium’s condition to interpret
the words of the spirit by themselves. In the context of the text, the historian must observe
the information and research through the eyes of those who once lived that reality, to better
understand History.

[4] RABINOVICH-BERKMAN, Ricardo David. Un viajen por la historia del derecho, pág. 64.
Buenos Aires: Quorum, 2007. Author’s own translation.

[5] Men were already victims of sexual crimes in the first half of the 20th century; however, due
to lack of legal provisions, those accused of such crimes were prosecuted and judged based on
classifications that had nothing to do with rape itself. For example, “violent indecent assault”
was used. I mention the term “legal self-sufficiency” because only in law was the man, the male
subject, incapable of suffering sexual assaults due to his gender.

[6] RABINOVICH-BERKMAN, Ricardo David. Un viajen por la historia del derecho, pág. 25.
Buenos Aires: Quorum, 2007.

[7] Complete reference: Henri de Page. Traité de Droit Belge. Brussels: [s.n.], 1942, p. 806. Cited
in John Gilissem. Introdução histórica ao Direito. Trans. Antônio Manoel Hespanha and L. M.
Macaísta Malheiros. Lisbon: Calouste Gulbenkian Foundation, 1979. p. 13).

78

BASED ON THE BOOK ORIGINALLY WRITTEN IN
PORTUGUESE

Alves, M. T. E. (2023). Primeiros Passos para Entender a História do Direito, 2nd ed. São Paulo:
Dialética

79

REFERENCES

RABINOVICH-BERKMAN, Ricardo David. (2007). Un viajen por la historia del derecho.
Buenos Aires: Quorum.

PLATÃO. (2021). A República. São Paulo: Editora La Fonte.

RUFINO, Eduardo de Almeida; Rufino, Emmanoel de Almeida. (2018). Das origens míticas do
Direito grego. Curitiba: Editora Appris.

DINIZ, Maria Helena. (2006). Compêndio de Introdução à Ciência do Direito. 18 ed. São Paulo.
Saraiva.

TRINDADE, André Karam; GUBERT, Roberta Magalhães. (2008). “Direito e Literatura:
aproximações e perspectivas para se pensar o Direito.” In: TRINDADE, André Karam; GUBERT,
Roberta Magalhães. (Orgs.) Direito & Literatura: reflexões teóricas. Porto Alegre: Livraria do
Advogado.

COULANGES, Fustel de. A Cidade Antiga. Trad. De Jonas Camargo Leite e Eduardo Fonseca.
Rio de Janeiro: Ediouro.

ARISTOTELES. (1995). A Constituição de Atenas. São Paulo: Editora Hucitec.

BRASIL. (1988). Constituição Brasileira (1988). Constituição da República Federativa do Brasil
de 1988: promulgada em 5 de outubro de 1988. Brasília, DF: Senado.

PEDROSA, Ronaldo Leite. (2006). Direito em História. 5. Ed. Rio de Janeiro: Lumen Juris.

GODOY, Arnaldo Sampaio de Moraes. (2008). Direito e Literatura: ensaio de uma síntese teórica.
Porto Alegre: Livraria do Advogado Editora.

HOUAISS, Antônio; VILLAR, Mauro de Salles. (2001). Dicionário Houaiss da Língua Portuguesa.
Rio de Janeiro: Objetiva.

VERNANT, Jean-Pierre. (2008). As origens do pensamento grego. 17. ed. Trad. de Ísis Borges B.
da Fonseca. Rio de Janeiro: Difel.

BARTHES, Roland. (1977). Aula: Aula inaugural da cadeira de Semiologia Literária do Colégio
de França. São Paulo: Editora Cultrix.

LEVACK, Brian Paul. (1988). A caça às bruxas: na Europa moderna. Rio de Janeiro: Editora

REFERENCES 80

Campus.

LACERDA, Gabriel. (2007). Direito no Cinema: relato de uma experiência didática no campo
do Direito. Rio de Janeiro: FGV.

ALEA, Tomás Gutiérrez. (1984). Dialética do Espectador. São Paulo: Summus.

REALE, Miguel. (1956). Horizontes do Direito e da História. São Paulo: Saraiva.

APTHEKER, H. (1969). Uma nova história dos Estados Unidos: a revolução americana. Rio de
Janeiro: Civilização Brasileira.

GOMES, Renata Andrade. (2006). “Com que Direito?”: análise do debate entre Las Casas e
Sepúlveda – Valladolid, 1550 e 1551. Dissertação (Mestrado em Direito) – Pontifícia Universidade
Católica de Minas Gerais, Belo Horizonte.

AZEVEDO, Luiz Carlos. (2005). Introdução à História do Direito. São Paulo: Revista dos
Tribunais.

SCHWARTZ, Germano. (2006). A Constituição, a Literatura e o Direito. Porto Alegre: Livraria
do Advogado.

TRINDADE, André Karam; GUBERT, Roberta Magalhães; NETO, Alfredo Copetti
(Organizadores). (2008). Direito e Literatura: ensaios críticos. Porto Alegre: Livraria do
Advogado.

GUBERT, Roberta Magalhães (Org.); TRINDADE, André Karam (Org.). (2008). Direito e
Literatura: aproximações e perspectivas para se repensar o Direito. In: Direito & Literatura:
reflexões teóricas. Porto Alegre: Livraria do Advogado Editora, p.11-63.

CONTRATIEMPO. (2016). Direção: Oriol Paulo. Elenco: Mário Casas, Bárbara Lennie, José
Coronado, Ana Wagener, Francesc Orella, et al. COR, ESP, Suspense Policial, DVD, 106 min.

GUTIÉRREZ, Jorge Luiz Rodriguez. (1990). “A Controvérsia de Valladolid: aplicação aos
índios americanos da categoria aristotélica de escravos por natureza.” Dissertação (Mestrado em
Filosofia) – Universidade Estadual de Campinas.

SEN, Amartya Kumar. (2000). Desenvolvimento como liberdade. Tradução Laura Teixeira Motta.
São Paulo: Companhia das Letras.

BRUM, Argemiro Jacob. (1988). Democracia e partidos políticos no Brasil. Ijuí: Ed. Unijuí.

REFERENCES 81

ARISTÓTELES. (1964). Arte retórica e arte poética. São Paulo: Difusão Europeia do Livro.

AGUIAR, R; MACIEL, J. (2018). Manual de História do Direito. 9.a ed. São Paulo: Saraiva Jur.

WOLKMER, Antônio Carlos. (2002). História do Direito no Brasil. 3. ed. Rio de Janeiro: Forense.

CASTRO, Flávia Lages de. (2017). História do Direito geral e Brasil. 13.a Edição. Rio de Janeiro:
Lumen Juris.

GRASSI, Fiorindo David. (1996). Direito Romano hoje: síntese da história e da filosofia do
Direito romanista. Frederico Westphalen-RS: URI.

GILISSEN, John. (2008). Introdução histórica ao Direito. Lisboa: Calouste.

ALTAVILA, Jayme. (1989). Origem dos Direitos dos povos. São Paulo: Ícone.

 

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