Canonic father and idealization: family law and everyday life in Brazil [1]

First of all, I wish to thanks Gizlene Neder[1], since she is co-author of a recent paper published with the title “The Sons of Law”[2].

For us, legal studies may be seen from the perspective of social sciences: Anthropology, Sociology, History, Political Science, and last but not least, Psychoanalysis. This article is a good example of the obsolescence of traditional disciplinary boundaries.

About methodology, we work reaching signs of Canonic Law and significant impressions; however, not immediately visible, of Catholic Church ideology. We name it tomism, as in Saint Thomas Aquinas thought, at the present days. We also want to look for the present and the past with interest in concrete data and quantification but never establishing limits to qualitative analysis and interpretation.

Our text focuses on the history of juridical ideas, linking power and discipline to the family in the transition to Modernity. We are interested in juridical ideology that has taken place in Portugal since the eighteenth century and in the context of Brazilian political emancipation (1822) when the Brazilian Empire intended to create both a criminal and a civil code. We have considered the relations between Enlightenment ideals and the circulation process (Italy, France, Netherlands, Germany) of these with the ideology of favor and slavery [3].

In the civil code (Family Law), for instance, civil marriage is very important, not only in Brazil but also in Portugal, in Spain, and all newly independent countries of Latin America. We are interested in the figure of the father too. The father is a symbol in his place of potestas (paterfamilis), according to Pierre Legendre’s approach [4], in the sense of idealization of the father figure, not only in the Civil Code but often in everyday life with reflections in all social relations.

Discussions and debates over the new Criminal Code (despite the presence of slavery) and Civil Code (in which marriage as a contract, in the sense of Napoleonic Code, was the main point) constituted the setting where Brazilian society confronted social changes (which, after all, were not that radical) regarding modernization, the formation of Republican State and the shifting and diversified senses of national identity in a period of economic and social change and cultural turbulence.

The delay in modifying the Civil Code in Brazil [5] was due to difficulties that reformers of the legal field encountered in articulating the restrictions that the modern views of the civil rights of the person (in this way, individualism, John Locke thought and the influence of the French Civil Code from Napoleon, are considered references and symbols) imposed on potestas. By the way, in Brazilpotestas continued to be grounded in a pre-modern conception, a conservative and clerical affective attitude towards authority in the family [6]. The main consequence was a total presence of potestas asking for hierarchy, submission, and obedience in society [7]. This design of a father loved and hated, overcomes the reality in the sense of Freudian idealization and a narcissist path, often with much suffering in the direction of no more than … paradise.

The real presence of the father itself was absent of course and the consequence was a symbolic ignorance of Law (in both juridical and Lacanian psychoanalytical ways).

The Brazilian Civil Code was written at first by Augusto Teixeira de Freitas [8], a very important Romanist. He wrote about 5,000 pages for the Emperor Pedro II and based on this draft, Clovis Bevilacqua concluded with many observations of Rui Barbosa. Teixeira de Freitas shows the influence of von Savigny and his book Traité du Droit Romain. For him, Romanic Law is all-around occidental Law and, for that, von Savigny was, probably, the most Romanic and occidental thinker of law. He was born in a part of Rhineland which had much influence from France, he was read in french in Brazil, and he had a french approach to German Law. Romanic Law, Canonic Law, German Civil Law, and French Napoleonic Law, are all together in a way of convergence of human rights, Enlightenment, civil marriage (as a contract) versus the conception of marriage as a sacrament according to Canonism. Because of that, there are no differences, in Freitas’ approach, between nationals and foreigners, like in Romanic Law, and against the decisions of Viena Congress. To establish differences between nationals and foreigners would be to open a door for divorce and the conception of marriage like a contract - something far from the point of view of the Catholic Church. Because of that and not only because of the project revision the Emperor contracted the Portuguese Luis Antonio Seabra to do, Teixeira de Freitas left the Brazilian Civil Code Project in other hands with the paper “Pedro (Peter) wants to be Augusto (August)” against the emperor Pedro II.

According to Pierangelo Catalano, from “La Sapienza”, Universittà di Roma, Romanism was always present since the independence days in Latin America. The beginners were Andrés Bello (Venezuela), for “codification of Pacific” and Augusto Teixeira de Freitas (Brazil) for “codification of South Atlantic”. In the same way, Velez Sarsfield for Argentine, especially with his notes about Romanic Law. Clovis Bevilacqua goes in this direction. Andrés Bello would like to say nowadays: “all who look at Romanic law as a foreign law, are foreigners themselves in our law”. This is a kind of exclusion of the contribution itself of the ideas from the French revolution and liberal radicalism against the influences of tomism as an ideology that carries hierarchy, favour, submission, and dependence on potestas (paterfamilis).

Sons (plural) of Law, these are all countries from Iberian influence; Son (singular) of Law, each one which looks for Canonic Law and preserves the Church influence of Saint Thomas thought.

Emotion in motion in a conservative way and authoritarian perspective became strong and it takes shape of a sweet melody in the sense of high and long “song of Law”. In this case, it is appropriate to listen to the music OFFICIUM DEFUNCTORUM, from Estevão de Brito [9]. All glory is dedicated to death in a real atmosphere of the “perinde ac cadaver”, the slogan of Inacio de Loyola, S.J.

[1] Paper presented at the SECOND WORLD MEETTING STATE GENERAL OF PSYCHOANLYSIS, em 30 de outubro a 2 de novembro de 2003, no Hotel Glória, Rio de Janeiro

[2] Gizlene Neder, professor and senior researcher at Federal University of Niterói (Universidade Federal Fluminense- UFF), chief of “City and Power” Laboratory, who shares with me post-doctoral studies at national Library of Lisbon, Portugal.

[3] A portuguese version with enphasys in socio-legal studies was published in Brazilian Journal of Social Sciences (Revista Brasileira de Ciências Sociais), v.16, n. 45 (113-127), São Paulo, fevereiro de 2001.

[4] For an original discussing, Roberto Schwarz, “Ao vencedor, as batatas”, Editora Duas Cidades, São Paulo, 1977 e “Um mestre na periferia do capitalismo: Machado de Assis”, Editora Duas Cidades, São Paulo, 1990.

[5] Pierre Legendre, “L’Amour du Censeur: essai sur l’Ordre Dogmatique”, Seuil, Paris, 1974.

[6] Finally it was stablished in 1916; hoever the Criminal Code in from 1830. The last one was written by Paschoal de Mello Freire.

[7] Gilberto Freyre, “Casa Grande e Senzala”, José Olimpio Editor, Rio de Janeiro, 1969 edition.

[8] Gizlene Neder, “Iluminismo Jurídico-Penal Luso-Brasileiro: obediência e submissão”, Freitas Bastos Editor, Rio de Janeiro, 2000.

[9] Gisálio Cerqueira, “Augusto Teixeira de Freitas referido por Joaquim Nabuco in Um estadista do Império”, anual regional meeting of National History Association (Associação Nacional de História – ANPUH), Niterói, 2000. Silvio Meira, “Teixeira de Freitas, o jurisconsulto do Império: vida e obra”, José Olympio Editor, Brasília, 1983.

[10] Estevão de Brito (1575-1641). He was born in Serpa, Portugal, and he has studied music with Filipe de Magalhães. He is considered of the third generation of Évora School of Music. He was Master of Badajoz Chapel from 1597 to 1613, when he was elected Master, among very important musicians of this time, for the Chapel of Málaga Cathredal. However he had been invited to be Master in Royal Chapel, in Madrid, he has remained in Málaga. The OFFICIUM DEFUNCTORUM still has a PRO DEFUNCTIS MISSA, from Cristobal de Morales.