Zeitschrift Debatten Rights, Justice, Cultural Diversity: Dynamics of Legal Prote

Luís Fernando Lopes Pereira*

The circularity of 17th century juridical culture in colonial Brazil: hybridism and tensions between common and educated understandings of the law.

1This text has been put together around a series of questions and answers, in an attempt to cover my central research questions, as they unfold along three basic axes: historical period, object of study, sources and method.

1.Why “colonial law”?

2The very issue implies the question of why this particular period was chosen. There are several reasons for this choice, which I will schematize below.

1.1 Studying the colonial period can contribute to current rethinking of national classics.

3Classics authors, known as “those who invented Brazil” because of the content and impact of their work, can be divided into two groups: those who belittled Portuguese heritage (Sérgio Buarque de Holanda1, Raymundo Faoro2, Caio Prado Junior3, Fernando Novais4, etc.) and those who exalted it: (Francisco de Varnhagen5 and Gilberto Freyre6). Caio Prado the former position the furthest, speaking of a colonial administration that is chaotic (without any division of powers), irrational (following no legality), contradictory, tied to routine and fueled by a monstruous and inefficient bureaucratic machine. In his words: “incoherence and instability in population patterns; poverty and misery in the economy; disintegrating customs; inertia and corruption among secular and religious leadership.”7 Lack of organization was seen as the rule: the population that had been marginalized, a legacy of slavery, tended toward social disintegration (“caboclização” and vagrancy). This then led to general (economic and social) malaise. For Freyre, in turn, the success of the colonial project could be seen as resulting from the Portuguese temperamento, its spirit of adventure and tendency toward miscegenation.

4A critical vision of the colonial past, sown initially through the pioneering classics and nurtured by research and teaching institutions, is the fruit of an academy that goes back to the period in which Brazilian nationalism was consolidated (during the 1920s and 1930s), reinforcinf the national in opposition to the colonial, that is, to Portuguese rule. Today a good portion of general Brazilian historiography has devoted itself to revising these studies. Authors such as Ronaldo Vainfas8, Laura de Mello e Souza9, Maria Fernanda Bicalho10, Luiz Felipe de Alencastro11 have made a fundamental contribution in this regard. They attempt to join forces with a kind of historiography that moves beyond the bias that colonialism left in its wake, toward elaborating a more complex, relational and plausible view of the colonial period.

1.2 (Re) positioning Brazil within the Portuguese Empire. (Re) Inserir o Brasil no Império Português.

5One of the elements that is present in the classics and that should be superseded is a view of Brazil that is entirely focused on the country itself. The exception to the rule is Gilberto Freyre’s work, which looked at culture through its constituting exchanges.. Nonetheless, colonial Brazil was part of an overseas Empire that engaged in forms of exchange that were much more intense than those that Freyre emphasized in his work, evoking our zumbaias and other orientalist expressions as well as Brazilian political and juridical experiences.

6In addition to Freyre, Brazilianists such as como Charles Boxer12 and Stuart Schwartz13 perceived the need to place Brazil in relation to other parts of the Portuguese Empire, and Africa in particular. They devoted themselves primarily to the discussion of themes related to the juridical sphere.

7Portuguese America, when examined from a relational perspective, reveals new facets including the transposing of other experiences, fruit of the more flexible model of colonization that the Portuguese Empire promoted. Studies that are carried out from this perspective open up a possibility for comparative study of the different regions in which similar Portuguese colonial structures, such as municipal chambers, the center of administration of justice for the Portuguese, were set up and became a central governamental element. Chamber councils took on different shapes according to region, varying from those that were more subordinate to higher authority, such as those set up in the Orient and in the Indies in particular, to those that had considerable autonomy, such as the one that was established in the Brazilian city of Salvador da Bahia. Devoting attention to the complexity of these configurations may do much for our understanding of cultural exchange within the political and juridical ambit of the Portuguese Empire.

1.3 The study of juridical culture can make a specific contribution to historiographic literature.

8An element that is common to all the classics mentioned above is their lack of interest in colonial juridical culture, treated in a caricatured fashion in their hasty analyses or in the way they consciously reject it, as Freyre does. Influenced by Boas, Freyre focuses on culture and avoids the political (and the juridical). When he does approach the juridical terrain, he does so only in terms of its dependence on monarchical power or uses it in a distorted way to demonstrate the juridical flaws that we had inherited from the Inquisition.

9The focus on juridical experience reveals an uncommon aspect of the colonial environment. Its structuring element becomes evident, just as Paolo Grossi14 has shown it to be within medieval configurations. Thus, studies such as those of António Manuel Hespanha15 (restricting ourselves here to its major figure) can cast new light on the Brazilian juridical world; a counterpart can be found in colonial studies through which new understandings of concepts originally valid for the Portuguese case can be developed.

2. The rationale for studies using culturalist tools.

10We are all aware that the present sheds light on the past and that is why discussions carried out in Europe on the Ancien Regime require adaptation to an environment different from their own. Thus, the use of the concept of juridical culture and its connection to knowledge paradigms that reinforce the need for the aforementioned types of filter become necessary, keeping our current goals in mind.

2.1 Colonial thought.

11If each present casts light on a past, Brazilian and metropolitan ones harbor differences. If the metropolitan case entails greater autonomy and a view of an Ancien Regime of juridical pluralismo, within colonial studies such a view is tempered with a dose of emphasis on control and centralization. We should not see a Leviathan where one does not exist, but should be attentive to the fact that in part, the imposing of metropolitan will, even through chamber councils, was successful.

12This reading of the colonial is inspired in what has been referred to as post-colonial thought, emerging from authors such as Homi Bhabha16, Edward Said17 and Tzvetan Todorov18. These authors demonstrate, in their own particular ways, the relationship between imperialism and culture and between different interpretive models on colonialism. I use this perspective to suggest a filtering of received elements, also employing the concept of cultural circularity – in this case, in reference to the relationship between metropolis and colony, center and periphery - elaborating a perspective of my own that does not reproduce a nationalist bias nor exalt “the native”, but rather carries out reflection on European theories (bringing the specificities of different locale, with particular historical and social bases, to bear on them).

2.2 Juridical culture: relational viewpoints that break with center-periphery dichotomies.

13The use of the term “juridical culture” seems quite adequate within this context of an attempt to establish a more dialogical view of the component parts of the AncienRegime’s system of justice for Portuguese America. The notion of culture that I use here is of anthropological inspiration, indebted particularly to Clifford Geertz19 and to the aforementioned post-colonial autores. It is meant to go beyond the home-colony dichotomy that is characteristic of traditional studies and whose view of culture centers around an ontological dichotomy betwen high and low cultures, with the latter always seen as a degeneration of the former. From such a perspective, popular culture is little more than a distant echo or vulgar version of high culture. Such a viewpoint has impregnated the analyses of legal history and of the relationship between metropolis and colony. The law of the cultured classes is seen as juridical culture in its entirety. Yet in reality, juridical culture is frequently reduced to those expressions, linked to the notion that law is an elite phenomenon. When applied to those who inhabit its margins, the latter are seen from a stereotypical and prejudiced point of view, as degenerate versions of cultured manifestations.

14A review of concepts of culture should lead to the notion that Law also includes what Clifford Geertz referred to as “local knowledge” which takes on particular characteristics in each place; as he puts it, “Law, I have been saying, (…) is local knowledge; local not just as to place, time, class, and variety of issue, but as to accent (…) It is this complex of charaterizations and imaginings, stories about events cast in imagery about principles, that I have been calling a legal sensibility”.

15Furthermore, this revision of the idea of culture meshes with the the concept of circularity, initially inspired in the work of historian Carlo Ginzburg, who himself takes inspiration of Mikhail Bakhtin. The latter suggested the notion of a polyphonic reality in a world in which discourse is always dialogic and in which truth is neither to be found in the subject who speaks nor in s/he who hears, but in the encounter between the two, in the relationship. Through this understanding, the concept of cultural circularity is constituted, demonstrating that cultural elements move not only from top to bottom (which can be relevant for the center/periphery and cultured/lay persons relationship) but also from the bottom to the top.

16Thus, analysis of juridical culture attempts to recover a multicultural and relational perspective which makes it possible to give salience to the elements that are circulating. It should however be kept in mind that the culture that is being discussed here is juridical and therefore retains some of the particularities of the field. This is the source of the demand for contextual knowledge of juridical configurations which escapes anthropologists and clamors for the jurist to open up to such dialogues and bring his or her voice into the frontiers of knowledge. After all, the study of Legal History has its specificities and should not become a juridical anthropology;20 on this point, I follow Paolo Grossi’s 21 notion of the specificities of juridical phenomena.

17Thus, one should not look to the analysis of juridical culture for the same elements emphasized here, that is, the popular aspect of the phenomenon; or, at the very least it should be kept in mind that the juridical case implies poses certain limitations on the field, if only because it is more steeped in high culture forms. Yet I have sought here to take inspiration in those boundary-crossing characters who within the legal field have played the role of representing “the popular” insofar it contributes to the construction of juridical knowledge.

18In the specific case of the study of colonial juridical culture, I focus on the figure of the common judge, a boundary-crossing character; a figure who is taken by high culture to represent the illiterate and the uneducated, but whom has real participation in the Chamber Councils that were a part of the administration of justice in the name of the King.

2.3 Revising the relationship between educated people and simple folk: circularity and boundaries

19It is my focus on the common judge that enables me to revise thinking on the relationship between the Law of the educated classes and that of simple folk. The way high juridical culture has been received by simple folk can also cast light on analyses of the cultural relations between colony and metropolis. It may also show that Portuguese colonial Law was often a result of the way sophisticated understandings of the law were filtered by people who inhabited its margins.

20The issue of boundaries and margins is also of fundamental importance for the type of studies discussed that are pertinent here. In the first place, due to the fracture it provokes in classical dichotomies such as the one between high and low expressions of juridical culture; secondly, because those who inhabit the border zones enable us to better identify the elements that circulate between high and low culture. Bakhtin’s Rabelais 22 in this sense reflects not only his educated background and high culture, but also his popular roots and what they contributed to his work. The same could be said of the inspiring sociological analysis that Norbert Elias made of Mozart23, drawing our attention to a person who although not a member of the nobility circulated within the court, a fator which enabled him to accumulate symbolic capital. Thus, even without using the term, Elias also identifies this circularity. A similar circularity is diagnosed by Carlo Ginzburg in his analysis of a miller who was persecuted by the Inquisition. Ginzburg analyzes Menocchi’s readings of books that were a product of high culture and then went about his own interpretations of them.

21Thus, in looking at the issue of the circularity of juridical culture I employ here Bakhtin’s concept of the sign, permitting a better understanding of juridical phenomena and their symbolic value, their meaning for a particular society. In Bakhtin, the sign is not neutral, but permeated with values; semiosis is not a unified process but one which is multiple and heterogeneous , as the sign both reflects and refracts.24 Since he does not see the Law as solely a discourse of authority (mere coercive command) but also as containing dialogic elements25 that demand a study of diverse meanings for each culture, the cultural space becomes one where multiple dialogues take place.

22Juridical language was constructed within the colony, in particular through intricate networks of common judges who managed justice within different settlements, with the support of a central figure to manage the exchange between high and low juridical culture, the auditor – central character in the dissemination of high juridical culture in the tropics. The common judge is thereby the boundary-crossing figure of colonial juridical culture. Chosen among the “good men” of the village, by the Chamber Council, common judges were responsible for the management of justice. Without formal training, as time went by they became increasingly familiar withthe formalities of colonial justice, learning its procedures and correcting actions through the intervention of the General and Regional Auditors, notwithstanding the fact that, in the last instance, it was the interests of “landowning nobility” that prevailed. In fact, the very existence of the latter term demonstrates how local elites reaped the fruits of the consolidation of the monarchy’s symbolic power in the tropics, while at the same time it demonstrates the more permeable character of the Portuguese court in relation to its English and French counterparts.

23From the point of view of juridical culture we see how these figures, initially far from juridical debate, become familiar with the latter over time, learning how to manage technical aspects and respect the procedures for the judicial sphere as they were set up within the chambers. Thus, from the reception on the part of these “simple folk” of juridical high culture, as well as its fusion with elements that were popular in origin, a colonial juridical culture emerged in which local patrimonialist interests and exchange of favors within a network that sustained such exhcanges were hidden under juridical disguise and with the approval of the King (and the elite). Elites were also made up of citizens, having been chosen to carry out tasks (and in particular, those of Common Judge) within the Councils.

24These simple folk were seen by the educated as illiterate people who made decisions orally, in summarized form and lacking formalities, using their local connections and private interests as their bases.

25An examination of juridical sources pertaining to the position of common judge may offer clues for revising established notions on the people who took on that role.

3. Why resort to archival sources?

26Since the French revolution in historiography that was authored by the Annales School, official archival sources – the only sources used by Rankean historiography and the focus of New School criticism – were progressively abandoned. In reality, the widening of sources for the historiography proposed by the French led to an emptying of archives and a loss in faith in the official sources that had been exhaustively used by positivists.

27Nonetheless, one of the particularities of history is the use of evidence, clues and signs; a considerable part of the material that can be used to look at the issue of colonial juridical culture can be found in archival sources. First, because there is a connection between the administration of colonial justice and the set up of Portuguese institutional apparatuses (whether Council Chambers, regional auditors or Courts), placing our sources within archives along with the documentation belonging to the Portuguese administration.

28The fact that these sources have simply been narrated within a context in which they provided a basis for nation-states today demands a response from historians, unless we are to simply repeat traditional narratives and interpretations. Thus, the aforementioned sources should be brought to bear again and reinterpreted in the light of new theories and new research on the functioning of the societies of the Ancien Regime and the colonial system. Juridical historiography can today make use of an accumulated body of historiographic theory as well as work on the period. We need to return to the available colonial historiographic sources for analysis of juridical culture and from the dialogue that they permit, enable both new interpretations of old sources and a revision of existing interpretations.

3.1 The Chamber Council of the Vila de Nossa Senhora da Luz dos Pinhais, Curitiba.

29There is another aspect that urges clarification: sources. Signs, clues, and evidence26 used here are related primarily to the Village of Curitiba, including documents from the Auditor of Paranagua, the Captainship of São Paulo and the Overseas Council. Most of them come from the Village of Curitiba: legal cases within the domain of the Common Judges27, some sent to the Paranaguá Auditor, and correspondence between the Village and the São Paulo captainship, as well as intermediating correspondence pertaining to the Overseas Council, and minutes from Chamber Council, Common Judge and almotaçaria hearings, as well as other sources that have been preserved within the Municipal Chamber of Curitiba (as well as Chamber accounting, licences and permits). A major element deserving salience is the exceptional amount of colonial sources that can be found in Curitiba, both within the Municipal Chamber and the Public Archives of the state. Almost all of the documentation relative to the Chamber Council and the Curitiba Common Judges are available for researchers’ use.

30In spite of the fact that these sources speak of a border region (Southern Brazil, and 18th century Curitiba in particular) that is conventionally seen as anomalous or not representative of Portuguese dealings, such notions can only be tested through comparisons of what went on in this village to that metropolitan will and that which happened in Portuguese cities and overseas colonies. After all, it is only through connecting cases to context that a case can be interpreted as anomalous (that is, with regard to a norm). As Ginzburg says, attention paid to the deviant and the exceptional creates the possibility of revealing something about the nature of the norm that attention focused exclusively on the norm would not reveal. In his eyes, “ the violation of a norm holds within itself the norm (insofar as what it pressuposes), whereas the opposite does not hold true.”28

31Yet the historian should not let herself or himself be deceived by sources or directed exclusively by them; s/he should keep in mind that what is important is the possibility that such sources, clues and signs give us to relate micro and macro (which in fact characterizes micro-history29) in order to interpret and give meaning to the past. As Walter Benjamin argues, “not all in life can be taken as a model, yet everythings serves as example”.30

3.2 New interpretation of sources: colonial juridical culture (between high and low)

32The councils were the training grounds for a colonial juridical culture that did not necessarily present itself as a force opposing the high juridical culture of the educated but, through complex circularity, offered and received elements that were used as a base for such constructions. What we find there is a fair assimilation of formal rules and technical proceedures, although each Chamber attempted to put together a content that permitted a fit between its own reality and technical drapings. In terms of configuration, the majority followed what had been determined by the Orders of the Kingdom in its Book I, Title 65 (Phillipines) initially prescribing that such councils be formed by the “good men of the municipality”, from among whom common judges would be chosen. In Curitiba there was little regularity with regard to the choice of common judges and their mandate, not even in terms of something so basic as how many of them were chosen.

33Common judges’ functions were both judicial and administrative and legislative (albeit using this modern terminology in an anachronistic way, since within the logic of the Ancién Regime such a separation made little sense). Councillors’ roles included “ an ancient sense of punishment, charging taxes and fiscalization of particular people in particular places, both preceding and within its institutional sense and which continues up to the presente.”31 This includes a certain policing power which the Senate retained, particularly through the figure of the almotacés.

34In any event, on this urban stage, planned and thought up by the Portuguese and shaped to adapt to the tropics, there emerged a colonial juridical culture made up of visions of justice and ways of applying it to the Southern villages of Colonial Brazil. The Common Judge was the greatest boundary-crossing figure within this culture; initially uneducated or with little schooling, over time he came not only to appropriate the instrumental procedures of Portuguese Law but to employ such juridical instruments in his own interests or those of the group to which he belonged, yet without running contrary to metropolitan intentions.

3.3 Common Judges and colonial juridical culture.

35From an examination of forces at play, we can demonstrate a plurality of meanings within Portuguese colonization, even if we take only the Americas as our example. The locale where the village of Curitiba was set up was initially occupied by people “from São Paulo”; this dates back to the mid 17th century (the first land concessions date back to 1632 the years immediately following), a period in which the region was juridically connected to the Marquis of Cascais, heir to a donating captain. The settlement became a village in 1668, when the first pillory (for public punishment) was set up, in response to a petition for the establishment of justice and in conjunction with population growth and the advancing age of the Captain responsible for the settlment. However, the first Chamber Council was not elected until 1693. Curitiba, situated on a high flatland (over 900 meters above sea level) was at that time extremely difficult to get to and over 100 kilometers inland from Portuguese Maritime Empire ports. In this regard, we can say that for its time and the reigning standards, Curitiba constituted a peripheral village - beyond the commercial heartland and lost in the hinterlands.

36Yet we find there a vast documentation of the functioning of the Chamber Council, one which in and of itself begins to problematize traditional evaluations of the simple folk, dealing exactly with the formalization of juridical proceedings ( for cases involving common judges) and the administration of justice within this village of the periphery. Council record keeping shows cases that follow the steps required by the King’s Orders, put together in a series of books that the Curitiba Council had at its disposal since 1704, period prior to the connection of the whole Southern region to the São Paulo captainship, which occurs in 1715. After this period, Curitiba and other Southern districts came under stricter control, which is not necessarily detrimental to their autonomy but does often signify a greater accumulation of formal knowledge, enabling juridical solutions where conflict with metropolitan interests arose.

37There are also cases relative to those who have commented the Ordinances and debates in which the juridical books that circulated even within that remote part of the Empire are cited. Perhaps laypersons’ conditions were different there, or reflected the high vs. low culture dichotomy. The fact is that sources identify a common person who went on to act as judge at least ten times during the decades of 1630, 1640 and 1650, Francisco de Siqueira Cortes.32 The procedures that he adopted as common judge show that he initially had no inclination toward the exercise of such a function, which involved rules of conduct, In fact, he had been removed from the position of evaluator in a situation in which a person capable of accounting was required, “the evaluator, attendant Francisco de Siqueira Cortes was not well qualified and did not know how to distribute property...”33 This was in 1737, after he had exercised the function of common judge for the first time. Nonetheless, it seems that such inaptitude for numbers did not interfere with his opportunity to assume a place within juridical logics and come to master its procedures and techniques. After all, he exercised this function on nine other occasions, in addition to having exercised other similar ones within the chamber council, such as councillor and almotacé. Furthermore, Francisco de Siqueira Cortes also acted as a defender of local elites involved in conflicts over land ownership34. In the minutes of different cases that were under the jurisdiction of the Curitiba Common Judges, we find evidence of a series of formal legal acts that were carried out and in which strict adherence to established measures ( Ordinances book III) was invoked. The person described here seems to represent the typical boundary-crossing figure of juridical culture. He learned through contact with the material that was at hand (Ordinances and some commented works) together with the recommendations made by General and Regional Auditors Gerais, in order to build up his own juridical culture, which went as far as proposing specific solutions for cases such as that of Indians and their legal status (analyzed by my Master’s student, Liliam Brighente.) Based on these sources, he enabled the construction - within the São Paulo Captainship and within the domain of common judges- of a category of public administration which served to hide slavery and mask the status of the captives as subjects under the royal system of administration and its rules.

38Yet there were also centrifugal forces at work. At the end of the 18th century, Brazil was divided into 24 regions35, representing greater proximity to Royal Law and a more sophisticated circularity of juridical culture, given the presence of Royal Auditors and lesser distance between the Captainships that kept up an intense network of correspondences, linked with the Metropolis.36 The redefinition of political-juridical configurations, with the expansion of the Southern frontier, led the jurisdiction of the Rio de Janeiro Court to cover the territory that included all of Espírito Santo and extended to the Sacramento Colony, including the hinterlands of Mato Grosso and Curitiba. The Auditors of the Regions and the heads of the Captainships were the key pieces in the dissemination of high juridical culture within Brazilian cities and villages. Through constant corrections, Auditors sent the fundamental procedural models for implementing Royal Justice out to the councils.

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Beitrag vom 18. August 2014
© 2014 fhi
ISSN: 1860-5605

  • Zitiervorschlag Luís Fernando Lopes Pereira, The circularity of 17th century juridical culture in colonial Brazil: hybridism and tensions between common and educated understandings of the law. (18. August 2014), in forum historiae iuris, https://forhistiur.net2014-08-lopes-pereira