Limits and displacements in the adoption of criminological positivism in Brazil (1890–1940)

Abstract

At the end of the nineteenth century, two important events characterized Brazilian history: the gradual abolition of slavery (1871–1888) and the establishment of the Republic (1889). Political changes were also related to the strategies aimed at modernizing the country and defining the “brazilianness”. Cities' growth was marked by urban reforms that also implied a break with the colonial tradition. The new conception of the public space imposed the exclusion of the “unwanted” classes (such as blacks, prostitutes, rogues, and young delinquents) from the social body. Law professors from the Law Schools of Recife, Rio de Janeiro, and São Paulo welcomed with enthusiasm and espoused at length the Italian positivist criminology. The relentless critiques of the traditional approaches to criminal law and criminality led to the unanimous rejection of the Code of 1890 which basically followed the classical conception. In the coming decades, discussions arose, reform projects were presented, and some legislative reforms were carried out, taking into consideration the proposals of the positivist school, without radically changing the situation. Forensic medicine followed positivist views and the police organization sought to be guided by “scientific” methods of prevention, investigation, and treatment of suspects and inmates. The Penal Code of 1940 adopted some positivistic views but did not depart fundamentally from classicism and retained the tenets of retribution and free will. The chapter investigates academic publications, legislation, and judicial decisions, showing the great distance between the discourse of the legal elites, and the answers given by the criminal justice system.