Common Law and the Brazilian Criminal Procedure

a Critical Look at Decree no. 848/1890 and the Forgotten 1902 Supreme Court’s Decision

Abstract

The research aims to solve the following problem: what are the historical normative restrains of the old Brazilian Criminal Process that exercise influence today within the scope of the intricate relationship between the models of written legislation and the common law system in Brazil? In order to answer the question, we have set the following objectives: firsty, to deal both with legal normative sources, in particular with Decree no. 848/1890, and with the brief insertion of Brazil in the common law model. Secondly, to research the judicial normative sources from the judgment of civil appeal no 745 and the embargoes, whose judgments were issued by the Brazilian Supreme Court on respectively June 6, 1902 and September 30, 1904, and thirdly, to verify the conditions raised by the Supreme Court to establish a common law orientation in the Brazilian legal system. The paper is justified to the extent that, in Brazil today, the position of the judge who creates the law (judge made law) is highly criticized, as it conflicts with the model of the Roman-Germanic written legislation. Although critics may be correct in their views, most of them ignore certain historical normative premises. We use an inductive research method of investigation followed by the critical dialectical method of legal history.