What Is A Good Book? Epistemic Virtues and The Role of Originality in Brazilian Public Law Scholarship (1820s - 1889)

What is a good book?
Epistemic virtues and the role of

originality in Brazilian public law scholarship (1820s-
1889)
Arthur Barrêtto de Almeida Costa
PhD candidate in Theory and History of Law at the Università degli Studi di Firenze. Member of
Studium Iuris – Research Group on the History of Legal Culture (CNPq/UFMG).
E-mail: Arthurbarretto@gmail.com
Abstract
Which virtues and vices XIXth century Brazilian public opinion used to evaluate legal
books and scholars? The paper analyzed the texts published in Brazilian newspapers
commenting on books of public law, which are called “evaluation literature”, to answer this
question. Major virtues were: utility, clarity, method, moderation; minor ones were:
originality, experience, abnegation etc. This chart of values can be derived from the
objectives of Brazilian legal scholarship of the time: not an academic discipline defined by
research, but a technical discourse aimed at professional instruction and public intervention.
Keywords: Originality. Research. Law books. Legal scholarship. Brazilian law.
Résumé
Quelles vertus et quels vices l’opinion publique brésilienne du XIXe siècle utilisait-elle
pour évaluer les livres de droit et les universitaires ? Pour répondre à cette question, l’article
analyse les textes publiés dans les journaux brésiliens commentant les livres de droit public,
ici appelés « littérature d'évaluation ». Les vertus majeures étaient l’utilité, la clarté, la
méthode, la modération ; les vertus mineures étaient l’originalité, l’expérience, l’abnégation,
etc. Ce tableau de valeurs peut être déduit des objectifs de la doctrine juridique brésilienne de
l'époque : non pas une discipline académique définie par la recherche, mais un discours
technique visant l’instruction professionnelle et l'intervention publique.
Mots clés: Originalité. Recherche. Livres de droit. Études juridiques. Droit brésilien.
I – Producing legal knowledge: introduction

1 The scent of quality can elude even the most trained noses; this is why any product must
not only be absorbed, but also digested. In other words, books must not be simply read, but
also discussed. But in which terms? Any debate demands (or begets) criteria, which can be
more or less objective. This is the murky terrain in which this paper will be moving. Which
were the criteria used by Brazilians to determine what was good legal scholarship? Which
were the virtues and vices of books and their authors? What was the relationship between
professional constraints and intellectual aspirations? What can this say to us about the social
conditions of knowledge production?
1
2 A few authors have already ventured into XIXth century Brazilian legal literature, be it in
general1 or considering either some specific branches of law2 or some particular media3.
Thanks to recent research, we now know how books circulated 4, how normative information
was conveyed5, how administrative information was processed 6, how books condensed and
manipulated previous knowledge7 and how the Brazilian legal culture interacted with the
legal communities of other countries8. Though many gaps still remain, some general trends
might be emerging. These developments ow an enormous debt to book history 9: we are
growing ever more conscious that, to fully grasp the very engine of law, it is fundamental to
understand how ideas were concretely turned into books, and how those objects reached the
hands of its readers to be deciphered, absorbed and reused.
3 Knowledge: books are the material embodiment of a much wider reality, that is, the human
journey from ignorance towards wisdom. In the last few years, historiography has
increasingly venture towards the history of knowledge, seeking to identify how cultural
standards determined how knowledge was produced in the past10. A productive research
agenda has connected this approach with virtue epistemology, a sub-discipline that explores
the ethical dimension of knowledge11. As historians grow increasingly aware of a moral
economy of science separating good from bad practices, scientists and products12, historical
investigation has focused attention on the history of epistemic virtues 13, that is, traits of
character considered desirable – from either a pragmatical or moral point of view – by an
intellectual community. The prime example is the analysis of the virtue of objectivity by
Daston and Galison14; more recently, other historians have explored such approach, as
1
For a synthesis of the legal literature in the Brazilian empire, cf. P. Dutra, Literatura jurídica do Império, Rio
de Janeiro, Padma, 2004, p. 1-123.
2
For administrative law books, cf., W. Guandalini Jr., Raízes históricas do direito administrativo brasileiro.
Fontes do direito administrativo na doutrina brasileira do século XIX (1857-1884), Curitiba, Apris, 2019, p. 1-
95.
3
For instance, law journals. Cf. A. Soares de Castro Formiga, Periodismo Jurídico no Brasil do Século XIX.
História do Direito em Jornais e Revistas, Curitiba, Juruá, 2010, p. 1-202.
4
For the circulation of books in the Brazilian empire, cf. V. Nani Ayres, Da sala de leitura à tribuna. Livros e
cultura jurídica em São Paulo no século XIX, PhD Thesis, São Paulo, Universidade de São Paulo, 2019.
5
For the diffusion of knowledge of civil law, cf. S. Rodrigues Barbosa, “Complexidade e meios textuais de
difusão e seleção do direito civil brasileiro pré-codificação”, História do direito em perspectiva. Do antigo
regime à modernidade, eds. R. Marcelo Fonseca and A. Cerqueira Leite Seelaender, Curitiba, Juruá, 2008, p.
361-372.
6
For the uses of case law and other informations on the Roman Curia, particularly the Congregation of the
Council, cf. B. Albani and A. Clara Lehmann Martins, “A governança da igreja escrita entre o nacional e o
global. A presença das congregações romanas em manuais brasileiros de direito eclesiástico (século XIX)”,
Almanack, 26, 2020, p. 1-78.
7
For uses of legal sources in Brazilian and Portuguese books of private law, cf. A. Manuel Hespanha, “Razões
de decidir na doutrina portuguesa e brasileira do século XIX. Um ensaio de análise de conteúdo”, Quaderni
fiorentini per la storia del pensiero giuridico moderno, 39, 2010, p. 109-151.
8
Considering particularly administrative law, cf. A. Barrêtto de Almeida Costa, “The Tropical Fado that
Wanted to Become a European Samba. The Cosmopolitan Structure of Brazilian Administrative Law
Investigated with Bibliometric Data (1859-1930)”, Forum historiae iuris, no number, 2021, p. 1-57.
9
For a synthesis of the last developments in book history in Brazil, cf. M. de Moraes Silveira, “The history and
historiography of the book in Brazil. Present conditions and future directions”, Lingua Franca, 4, 2018, p. 1-10.
10
On these trends, cf. L. Daston, “The History of Science and the History of Knowledge”, Know. A Journal on
the Formation of Knowledge, 1, 2017, p. 131-154.
11
On virtue epistemology, its history and its rise in the 1980s and 1990s, cf. L. Zagzebsky and A. Fairweather,
"Introduction", Virtue epistemology. essays on epistemic virtue and responsibility, eds. L. Zagzebsky and A.
Fairweather, Oxford, Oxford University Press, 2011, p. 1-9.
12
On this concept, cf. L. Daston, “The Moral Economy of Science”, Osiris, 10, 1995, p. 2-24.
13
For an overview of the field, cf. J. Van Dongen and H. Paul, “Introduction”, Epistemic virtues in the science
and the humanities, eds. J. Van Dongen and H. Paul, London, Springer, 2017, p. 1-10.
14
L. Daston and P. Galison, Objectivity, New York, Zone Books, 2007, p. 1-505.
2
Herman Paul, who investigated which moral traits were deemed by Dutch historians as
necessary in the pursue of high-quality scholarship15. Much of this scholarship has (rightfully)
drawn attention to the model individual considered as a good knowledge-producer. In law,
there is at least one commendable example of such an approach: Antônio Manuel Hespanha
and his analysis of the “perfect Early Modern jurist”16. In this paper, I intend to joint analyze
the virtues of scholars and their scholarship, shedding light on the process of knowledge
production. If legal history is to venture into the terrain of the history of knowledge 17, it is
fundamental that we think in terms of the virtues and vices of knowledge and of knowers, for
this moral economy is one of the cornerstones of the very intellectual grammar that shapes
and defines how knowledge comes to be.
4 Where can we find the evaluative texts that will give us a glimpse of this moral and
epistemic grammar? For this paper, I retrieved texts commenting books printed in Brazil from
the Hemeroteca Nacional Digital, a database with thousands of Brazilian newspapers openly
available on the internet18 and hosted by the national library 19. For the period 1820-1889, this
database hosts 3.610 Brazilian periodicals in digitally searchable format. I drew the list of
books to be analyzed from Pedro Dutra’s Literatura Jurídica do Império, minus some
repetitions and leaflets, plus ecclesiastical and canon law20, which gave me a total of 61 books
of public law published in Brazil between 1822 and 1889. I inserted the titles (or part of
them) of these books on the search engine of the Hemeroteca to retrieve evaluative texts
dealing with them. As evaluative literature, I understand not only reviews, but any text
dealing with books, as I shall discuss in section two. I could find 90 different evaluative texts,
including publicity commenting on 48 of the books I identified. These 90 texts will be the
cornerstone of this article.
5 According to research by Carlos Petit for Spain 21 in dialogue with the work done by
Pasquale Beneduce for Italy22, two paradigms of what was a good jurist coexisted in many
Western European (and Latin American) liberal 19th century societies: the “eloquent” and the
“scientific” models. Eloquent jurists: those professionals of law understood their activity as
the art of convincing, relying both on legal norms and wider cultural and literary knowledge
to advance their arguments23; they are encapsulated in the image of advocates, the princes of
the courthouse. On the other side, scientific jurists: the model of German professors, the
builders of a progressive system of axiomatic truths aiming at an abstract knowledge of law
to be taught at the university. In XIXth century Brazil, the eloquent paradigm still held sway
15
H. Paul, “The Scholarly Self. Ideals of Intellectual Virtue in Nineteenth-Century Leiden”, The making of the
humanities. Volume II. From early modern to modern disciplines, eds. R. Bod, J. Maat and T. Weststeikn,
Amsterdam, University of Amsterdam Press, 2012.
16
A. Manuel Hespanha, “O modelo moderno do jurista perfeito”, Tempo, 24, 2018, p. 59-88.
17
On one project following this path, cf. T. Duve, “Rechtsgeschichte als Geschichte von Normativitätswissen?”,
Rechtsgeschichte – Legal History, 29, 2021, p. 41-68.
18
Cf. https://bndigital.bn.gov.br/hemeroteca-digital/
19
E. Brasil and L. Fernandes Nascimento, “História digital. Reflexões a partir da Hemeroteca Digital Brasileira
e do uso de CAQDAS na reelaboração da pesquisa histórica”, Estudos Históricos, 69, 2020, p. 196-219.
20
For this field, I used A. Clara Lehmann Martins, The fabric of the ordinary. The Council of Trent and the
Governance of the Catholic Church in the Empire of Brazil (1840-1889), PhD Thesis, Belo Horizonte and
Münster, Universidade Federal de Minas Gerais and Universität Muenster, 2021, p. 1-476.
21
C. Petit, Discurso sobre el discurso. Oralidad y escritura em la cultura jurídica de la España liberal, Madrid,
Universidad Carlos III de Madrid, 2014, p. 1-190.
22
P. Beneduce, Il corpo eloquente. Identificazione del giurista nell’Italia liberale, Bologna, Il Mulino, 1996, p.
1-404.
23
On legal teaching and socialization in Brazil law schools, cf. S. Adorno, Os Aprendizes do Poder. O
Bacharelismo Liberal na Política Brasileira, São Paulo, EdUSP, 2021, p. 1-242; A. Venâncio Filho, Das
arcadas ao bacharelismo. 150 anos de ensino jurídico no Brasil, São Paulo, Perspectiva, 2011, p. 1-357.
3
over the legal discipline24, since universities did not exist and the two law schools were not
able to lay exclusive claim over the production of legal knowledge. The legal and political
professions were absolutely continuous with each other. It is the culture and values of this
eloquent jurist that will be studied here. It can be said with a fair share of certainty that,
during the long time-frame of our research (1820s-1889), the institutional base of academic
law remained fairly stable. The two pioneering law schools of Brazil were created in 1827
and must wait until the 1890s to be followed by younger educational institutions. After the
troubled post-independence years, the political actors of the second reign (1842-1889) were
able to keep stability both in economics and politics. The central sources of law remained
constant: the 1824 constitution for public law, and the 1603 Philippine Ordinations, for
private law. Jusnaturalism and eclecticism were the main legal theories, though they started
to be contested by positivism from the 1870s onwards 25; its full effects, however, can only be
grasped after the republican coup of 188926. Therefore, despite some variation, profound
cultural traits remained constant during the Brazilian empire: law schools as a reservoir of
cadres for politics27; eclectic legal methodology; liberalism in politics 28; two law schools
influenced by the traditions of Coimbra and French legal culture 29; the eloquent jurist as the
professional model, etc.
6 Quality. How a legal text must or must not be written: this is what I intend to understand.
By determining what was good and what was bad, Brazilian commentators also prospectively
determined how legal science should be written and what was the role of legal literature in
the legal system at large. We will discuss first the limits and targets of texts aimed at
evaluating books. After understanding our sources, we will in the second part use them to
extract the criteria used to identify quality and, after that, we will build a chart of epistemic
virtues and vices of both scholars and scholarship.
7 The system of knowledge production emerging from the sources is fundamentally different
from our own in several aspects. This appears most clearly in the meaning and place of one of
the capital epistemic virtues of the late XXth century: originality. While contemporary research
is meant to be original, to discover something new, other systems emphasize different
qualities30. The last part of this article will present a case study of the virtue of originality in
XIXth century Brazil, demonstrating to what extent it was important, what it meant to be
original in that context, how it related to the corresponding vice of plagiarism, and how the
concept of originality was conceived differently from our current understandings.
Comparison between present and past is after all a central tenant of historiography 31; I will
not be highlighting what the past “lacked”, but how it conceived knowledge production in a
different, specific way that can explain the modes in which past texts were written and help
24
R. Marcelo Fonseca, “Os juristas e a cultura jurídica brasileira na segunda metade do século XIX”, Quaderni
fiorentini per la storia del pensiero giuridico moderno, 35, 2006, p. 339-369.
25
A. Alonso, Idéias em movimento. A geração 1870 na crise do Brasil Império, São Paulo, Paz e Terra, 2002, p.
1-392.
26
J. Reinaldo de Lima Lopes, Naturalismo jurídico no pensamento brasileiro, São Paulo, Saraiva, 2014, p. 1-
436.
27
J. Murilo de Carvalho, A construção da ordem & teatro de sombras, Rio de Janeiro, Civilização Brasileira,
2008, p. 169-189; A. Venâncio Filho, Das arcadas ao bacharelismo. 150 anos de ensino jurídico no Brasil, São
Paulo, Perspectiva, 2011, p. 1-357.
28
C. Edward Cyrill Lynch, “O Conceito de Liberalismo no Brasil (1750-1850)”, Araucaria, 9, 2007, p. 212-234.
29
A. Barrêtto de Almeida Costa, “The Tropical Fado that Wanted to Become a European Samba. The
Cosmopolitan Structure of Brazilian Administrative Law Investigated with Bibliometric Data (1859-1930)”,
Forum historiae iuris, no number, 2021, p. 1-57.
30
W. Clarck, Academic Charisma and the Origins of the Research University, Chicago, The University of
Chicago Press, 2006, p. 211-220.
31
P. Costa, “História do Direito. Imagens Comparadas”, Soberania, representação, democracia, ed. P. Costa,
Curitiba, Juruá, 2010, p. 17-43.
4
us reflect on the paths for knowledge that were both opened and blocked when cultural
practices shifted along the XXth century.
II – Writing about law books in XIXth century Brazil: literary

genres and objectives
8 Law was one of the main domains of public culture in XIXth century Brazil, and the press
reflected its status. In the late 1800s, economic and political stability allowed for a mostly
free press under the auspices of liberalism and the imperial government of Emperor
Pedro II32. In this environment, political commentary emerged as one of the main functions of
newspapers, which were frequently used by different factions to criticize or defend the
government of the day33. Most men of culture who worked as journalists were law graduates,
since this path of studies was the only humanistic course available in Brazil. In such an
environment, law featured prominently. The press was deemed to play a central constitutional
role by the political theory of the time, being responsible to form the “tribunal of public
opinion” that would hold public officials accountable34. In many newspapers, the figure of the
“publicist” emerged, that is, journalists/politicians that commented on contemporary events
blending legal debates with political and economic reasoning35. Law and journalism were
deeply entangled. As we shall see later, many legal books of public law were first born as
articles in periodicals. And as there were few law journals 36, many legal debates were held in
the general press. These characteristics, that held together from the early 1840s to the late
1880s, render the general press a good venue to look for texts on law. But where do we
search for them?
9 You will not find a “culture section” in Brazilian newspapers from the imperial era. But
you might sometimes find a review. Rare, too short or too long, full of adjectives, though:
they are probably not what you would expect. The texts I have found throughout my research
are sometimes far removed from what we would today understand as a classic academic
review; nevertheless, many texts discuss the contents and context of books, having provided
useful information for past readers and a valuable tool for contemporary historians. Two main
concerns dominate their writing: they could be aimed at the public opinion in general, when
the book was deemed of general interest; or they could target professionals – lawyers,
bureaucrats, politicians - needing practical orientation. Most reviews were published in
newspapers, and even those that appeared in professional journals had to appeal to a broad
audience: jurists were not simply workers in the great machinery of justice, but the very life
and blood of the State.
10 A different world from ours, then. But which world? Evaluative texts could come in
various forms and shapes – that is, different literary genres. I could identify five of them
circulating in Brazilian press: publication note; reproduction of letter; thank note; review;
publicity. In most of them, commercial considerations, “scientific” and social concerns might
32
For a good synthesis on the Brazilian press in the late 19 th century, cf. N. Werneck Sodré, História da
imprensa no Brasil, Rio de Janeiro, Mauad, 1999, p. 181-250.
33
On the relationship between the press and political power at the time, cf. A. Luiza Martins and T. Regina de
Luca, História da imprensa no Brasil, São Paulo, Contexto, 2021, p. 46-82.
34
J. Leão Lobo and L. Fernando Lopes Pereira, “A imprensa do segundo reinado no processo político-
constitucional. Força moral e opinião pública”, Revista da Faculdade de Direito da UFPR, 59, 2014, p. 179-
206.
35
A. Luiza Martins and T. Regina de Luca, História da imprensa no Brasil, São Paulo, Contexto, 2021, p. 49-
50; C. Ari Sundfeld, “A ordem dos publicistas”, Revista Brasileira de Direito Público, 8, 2005, p. 35-72; L.
Rodrigues Penna, “O publicismo e a política conservadora do Brasil no século XIX”, Opinião Pública, 25,
2019, p. 343-376.
36
A. Soares de Castro Formiga, Periodismo jurídico no Brasil do século XIX, Curitiba, Juruá, 2010, p. 1-202.
5
get explicitly or implicitly entangled, making it hard to differentiate between commercial
texts and classical reviews. We must now understand each one of them.
11 Publication notes were short texts informing readers that a new book had been or would
soon be published. They are at once informative and commercial, since they feature in regular
pages instead of the advertisement section, but also frequently state the price of the book and
where it can be bought. Sometimes, they publish the table of contents of the book37.
12 Reproduction of letters. Instead of writing an appraise of their own, newspapers could
simply reproduce letters from important scholars or personalities complimenting the book.
The most glaring example was the Direito civil ecclesiástico Brasileiro, from Cândido
Mendes de Almeida: the author received a letter from the Holy See in the name of pope Pius
IX himself praising the book38. He also received commendation letters from at least five
Brazilian bishops, which were all published in the press39.
13 Thank notes. Frequently, authors sent volumes of their recently published books to friends
and especially editors; as a reward, they would publish short notes on their newspapers,
stating the name of the book and usually complimenting the accomplishment represented by
the text40. Frequently, editors would state that they had not yet read the book, but that the
mere name of its author sufficed to recommend the newly published work41.
14 Advertisement. Those are texts published with the explicit aim of selling the book, and
were presented at a special page at the end of the newspaper. At the bare minimum, they
contained the highlighted title of the work, the name of the author and technical information,
as number of pages, price etc. Frequently, they presented the table of contents. However,
those texts often dared to go beyond their bare propagandistic functions and included a small
text evaluating the work, hinting at its potential audience and stating its qualities. For it, they
can be a precious source of information on what was deemed valuable in a technical work.
Furthermore, they also could make it hard to distinguish between commercial and non-
commercial texts. We can mention on this regard the Compêndio de direito ecclesiástico,
from Jeronymo Vilela Tavares. In the beginning of 1853, a short review published in the
regular pages of the journal praised this book for filling the gap of a Brazilian handbook of
ecclesiastical law42; this “review” stated at the end the price of the work and where it could be
bought: features typical of advertisement. A few months later, a traditional advertisement,
published in the proper section of the newspaper, used one paragraph of that previous review
to present the book43. This shows that the same text could be recycled for different literary
genres, since their objectives often overlapped.
15 Reviews. Reviews aimed not only to present the book to the reader, but also to somehow
evaluate its qualities. They could be shorter, and usually simply praised the work; in those
occasions, it would be hard to distinguish them from publication notes. Sometimes, though,
37
Example: Unknown, “nova publicação”, Diário de Pernambuco, 36, 1878, p. 2,
http://memoria.bn.br/DocReader/029033_05/19352; Unknown, “publicações literárias”, Diário de Pernambuco,
155, 1853, p. 2, http://memoria.bn.br/DocReader/029033_03/4022
38
Unknwon, “direito civil ecclesiastico brasileiro”, Correio Mercantil, 353, 1867, p. 2,
http://memoria.bn.br/DocReader/217280/28533
39
Unknown, “transcripção”, Diário de S. Paulo, 442, 1867, p. 2, http://memoria.bn.br/DocReader/709557/1694
40
A rich example is the letter from Friar Firmino de Centelhas congratulating his former student Ezechias
Fontoura for sending a copy of the book he had published: Unknown, “direito eclesiástico”, O Apóstolo, 102,
1888, p. 2 http://memoria.bn.br/DocReader/343951/11384;
41
Examples: Unknown, “bibliografia”, O Apóstolo, 82, 1887, p. 2
http://memoria.bn.br/DocReader/343951/10752; Unknown, “o moderado”, O Moderado, 104, 1862, p.1,
http://memoria.bn.br/DocReader/830410/408;
42
Unknown, “publicações literárias”, Diário de Pernambuco, 115, 1853, p. 2,
http://memoria.bn.br/DocReader/029033_03/4022
43
Unknown, “direito eclesiástico”, Jornal do Commercio, 250, 1853, p. 4,
6
reviewers adopted a more polemist tone. In those occasions, they did not follow the way
reviews are written nowadays; that is, to insert them into an academic debate, then assess its
methodological assumptions, and finally, to discuss the arguments and results. No. Since
Brazilians were immersed in a more “oral” culture, as I have mentioned in the introduction,
those reviews tended to reproduce the schemes of lived debates: reviewers would isolate the
arguments presented by the book and would discuss them one by one, endorsing or rebutting
their merits44. Such texts were rare, but could prompt responses from authors, giving rise to
colorful debates.
16 Most texts were short: a paragraph or two. Advertisements normally employed bold
lettering and different fonts to call the attention of the reader. This can be seen in figure 1.
Nevertheless, almost all of them tended to be discreetly placed. See figure two, right side,
which shows a publication note, lost in the third page of the newspaper. This only highlights
the importance of what is displayed in the left side of the same figure: a longer review put in
the first position of the newspaper. Not by chance, the text discussed here is Direito público
brazileiro, a 1857 constitutional law book that would be later recognized as the magnum
opus of XIXth century Brazilian constitutional law; its author, José Antônio Pimenta Bueno,
was a senator and would later serve as prime minister. Full reviews tended to discuss more
prominent works, like this one, and therefore could feature in more prominent positions. Not
always, but sometimes, a law book could be the most important news of the day.
44
Examples: Unknown, “a liberdade religiosa”, A Constituição, 92, 1866, p. 2,
http://memoria.bn.br/DocReader/235334/991; Unknown, “os dois regalismos”, Bem Público, 50, 1875, p. 1,
http://memoria.bn.br/DocReader/890278/6604; Unknown, “estudo de algumas questões constitucionais I”,
Jornal da Tarde, 177, 1880, p. 1, http://memoria.bn.br/DocReader/713120/2122; Unknown, “da natureza e
limites”, 247, Jornal do Commercio, 1880, p. 1, http://memoria.bn.br/DocReader/364568_05/1034
7
Figure 1 Exemples of literary genres of Brazilian evaluative literature. On top: advertisement 45. Bellow, from
left to right: letters46, thank note47, publication note48.
45
Unknown, “a constituinte perante a história”, A actualidade, 531, 1863, p. 4,
46
Unknown, “transcripção”, Diário de S. Paulo, 443, 1867, p. 2, http://memoria.bn.br/DocReader/709557/1694
47
Unknown, “bibliografia”, O Apóstolo, 82, 24/06/1887, p. 2, http://memoria.bn.br/DocReader/343951/10752
48
Unknown, “reforma eleitoral”, 177, Correio mercantil, 1868, p. 2,
8
Figure 2 Examples of positions of evaluative texts published in Brazilian newspapers highlighted in red.
2.1 On the left, a review on the first page49;
2.2On the right, a publication note on the second page50.
17 Literary genres have their conventions. Those writing evaluative literature had to include
certain information as a matter both of manners and deference to the author they were
assessing. Not all texts included this “protocol”: it featured most prominently in publication
notes, thank notes and letters; in reviews, this unwritten code appeared often, but not always
– it was particularly absent when the debate was heated or political tensions were at play.
This protocol comprised the following elements: compliments to the efforts carried out by the
author in writing the book51; eulogy to the “service to the country” that the book was;
information on the profession of the author; highlights on the importance of the topic being
discussed. In thank notes, obviously, it was remarked that the newspaper had received a copy
of the book and the author was thanked.
18 The “protocol” created – or presupposed - a certain image of scholars: selfless, solitary
men working in the interest of pure knowledge. Since most of them were not university
professors, and even lecturers were not obliged to publish or perish, a new book could only
be regarded as a noble act aimed purely at the development of national culture. Hence the
49
Unknown, “correio mercantil”, Correio mercantil, 179, 1857, p. 1,
50
Unknown, “apontamentos sobre o contencioso administrativo”, Diário de Pernambuco, 237, 1874, p. 2,
http://memoria.bn.br/docreader/029033_05/11386
51
Examples: J. Maria de Avelar Brotero, “Memória Histórica”. Relatório do Ministério do Império, ed. J. Maria
de Avelar Brotero, Rio de Janeiro, Thypographia Nacional, 1859, p. 4
http://memoria.bn.br/DocReader/720968/5143; Unknown, “folhetim do jornal do comércio”, Jornal do
Commercio, 194, 1855, p 1, http://memoria.bn.br/DocReader/364568_04/8780
9
almost universal statements that one book was a “service to the country”52 – or, in the case of
Cândido Mendes, “service to the State and the Church”53. Such statements spawn from
XIXth century nationalism, which proposed a sort of “civic religion” of the nation, which is
perfectly explained by one of the reviewers of the Ensaio de direito administrativo, of the
Viscount of Uruguay54: “my sole intention [with this review] is to pay a tribute of lively
admiration to one of the first men of the empire for the service he has just paid to our social
civilization […]. The cult of the great men is a national duty”.
19 Not everyone was willing to take part in this civic cult, though. In 1873, the Correio
Paulistano newspaper published a mix of thank note and review of Nicolau dos Santos
França e Leite’s Considerações Políticas sobre a Constituição that slightly departed from the
apologetic tone of the “protocol”; this generated a bitter spat with the son of the late author.
Let us follow for a moment this altercation.
20 The Correio Paulistano published a medium-sized appraisal of the book, a posthumous
publication curated by the author’s son, França e Leite Filho. The reviewer remarked that the
book was “written with calm, with high criterium and strong erudition”; however, “they do
not belong anymore to our times, the doctrines” exposed in the book: that is, the “unanimous
optimism “that considered “the constitution of Peter I and the school of Benjamin Constant
the non plus ultra of liberalism “was outdated. However, the work had its merits and
deserved to be read as an example of the “historical element”55 [element histórico].
21 França e Leite Filho did not receive well the remarks; he published a response stating that
the ideas of his father were actually those espoused by the majority of the country, and not
“individual beliefs tossed randomly to satisfy a misunderstood vanity or the interests of a
political party”. He implied that Correio Paulistano was simply advancing his own
republican convictions56. The newspaper replied in a third article that França e Leite Filho
had written a “passionate and unfair” piece that could only be understood as spawning from
filial love; the Correio had, conversely, written with “goodness, calm, finesse, and good
criterium”57.
22 By criticizing the book as outdated in what was supposed to be a thank note, the Correio
departed from widely held literary conventions; the strong reaction from França e Leite Filho
only proves that the “protocol” for writing evaluation literature was real and enforced.
23 Some did not accept the literary conventions uncritically. Carlos Perdigão, commenting
the Constituição Política (1876) of Joaquim Portella decried that “in our country, this
enormous emporium where life is wholly mercantile, the most recommended works […] are
almost always the object of complete indifference”. This because “the public opinion […]
usually treats with perfect equality the exceptional works and mediocre or insignificant
52
Examples: Unknown, “folhetim”, Jornal do Commercio, 184, 1855, p. 1,
http://memoria.bn.br/DocReader/364568_04/8780; Unknow, “ensaio sobre o direito administrativo”, Diário de
Pernambuco, 121, 1862, p. 8, http://memoria.bn.br/DocReader/029033_04/6431; Unknown, “O Sr. Visconde do
Uruguay”, Constitucional (RJ), 182, 1862, p. 8, http://memoria.bn.br/DocReader/235709/325
53
Unknown, “obra de direito”, Diário de S. Paulo, 419, 1857, p. 2,
http://memoria.bn.br/DocReader/709557/1598; Unknown, “direito civil ecclesiastico brasileiro”, Diário de S.
Paulo, 729, 1868, p. 1, http://memoria.bn.br/DocReader/709557/2803
54
Paulino José Soares de Souza, Viscount of Uruguay (1807-1866). One of the foremost Brazilian jurists,
considered to be one of the founders of Brazilian administrative law. He was a judge and for several times, a
deputy. From 1849 onwards, he was a senator and for five times, he was a minister of state. He was one of the
most revered leaders of the conservative party. Cf. A. Victorino Alves Sacramento Blake, Dicionário
bibliográfico brasileiro, Sexto volume, Rio de Janeiro, Imprensa Nacional, 1990, p. 354-356.
55
Unknown, “publicação importante”, Correio paulistano, 573, 1873, p. 2,
56
Unknown, “o juízo”, Correio paulistano, 5076, 1873, p. 2, http://memoria.bn.br/DocReader/090972_03/3957
57
“A bonhomia, a calma, a tolerância, a delicadeza e o bom critério”. Unknown, “consideração sobre a
constituição”, Correio paulistano, 5076, 1873, p. 1, http://memoria.bn.br/DocReader/090972_03/3956
10
writings. Among us, where temerary compilations are not received less well than good books,
the wise rarely try to instruct themselves” 58. With the “mercantile emporium” he is probably
referring to the economic interests behind clientelist networks which dominated the social
fabric of imperial Brazil, and was the main drive behind everything from the distribution of
public jobs down to the exchanges of favors between apologetic editors and authors eager for
recognition. Reviews in this context served mostly to be exchanged for favors, resulting in a
writing protocol that demanded that adulation must always be showered upon authors – all of
them, irrespective of quality or merit.
24 The evaluating literature in XIXth century Brazil might be diverse in its forms, but was
monotonously monotonic in its constant and uncritical endorsements. But, perhaps because of
this, it offers a precious window into the minds of XIXth century Brazilian lawyers by showing
what were the virtues deemed to be obviously desirable: so widely accepted, so anodyne, so
shared that they could be used to praise even unremarkable works without the slightest
chance of offending authors.
25 Which were those values, then?
III – Evaluating books (and authors): standards of quality in the

legal literature
26 The “protocol” for writing evaluative literature in XIXth century Brazil provided the form;
contents, otherwise, could be filled more freely. Freely: not randomly. Underlying the
apparently chaotic mass of texts and fragments, a constant, though sometimes disputed,
pattern emerges. Reviewers not only set a model of what would be an ideal book, but also
certain characteristics that authors should cultivate. Now, we must analyze both.
27 To the authors. Three themes were more frequently raised connecting the books written by
Brazilian jurists with their activities outside the ethereal debates of law: uses of their
experience in public office to craft their works; the books as part of a civic activity aimed at
defending and reforming the national institutions; and debates on what should be the proper
relations between politics/parties and scientific writing.
28 Some of the very founding works of Brazilian public law were valued for the experience
of their authors in the public administration: that was the case of Pimenta Bueno’s Analyze
da Constituição do Império (1857) and the Viscount of Uruguay’s Ensaio de Direito
Admiministrativo (1862). One reviewer deemed commendable that the latter had used his
“proficous experience” to point the “defects and lacunae of our current administration” 59.
Uruguay himself60 reports that he used knowledge he acquired “after exercising some high
administrative functions”; nevertheless, all of this must be organized and rationalized in the
“cabinet study”. As for Pimenta Bueno, he was praised for bequeathing the “lessons of his
experience” as statesman to the next generation 61. Political experience was a valuable tool,
though not indispensable, to write meaningful works of public law.
58
“Infelizmente, no nosso país, nesse grande empório onde a vida é toda mercantil, a obra mais recomendável
(...) é objeto quase sempre de completa indiferença: a opinião pública, desde o primeiro homem até o último
trata, em regra, com perfeita igualdade a obra excepcional e escritos medíocres ou insignificantes. Entre nós,
onde medonhas compilações não são recebidas com menos favor que os bons livros, os sábios tentam raramente
instruir”. C. Perdigão, “Bibliografia”. Gazeta Jurídica, 11, 1876, p. 178-184,
http://memoria.bn.br/DocReader/234788/6733; Unknown, “constituição política”, Diário de Pernambuco, 85,
1876, p. 8 http://memoria.bn.br/DocReader/029033_05/14965; Unknown, “constituição política”, Diário de
Pernambuco, 86, 1876, p. 8 http://memoria.bn.br/DocReader/029033_05/14973
59
Unknown, “ensaio sobre o direito administrativo”, Diário de Pernambuco, 121, 1862, p. 8,
60
P. José Soares de Souza Visconde do Uruguay, Ensayo de direito administrativo, Rio de Janeiro, tipografia
Nacional, 1862, p. VI-VII
11
29 But politics could also be dangerous – very dangerous. For most of the reviewers, when
ideological preferences for either party – conservative or liberal – were inserted in the
argumentation, they got in the way of one of the most praised virtues of a writer: impartiality.
Such remarks mostly appeared in books of constitutional law, those more politically charged
– like the Ensaio de direito administrative, from the Viscount of Uruguay, a senator and one
of the foremost leaders of the conservative party. Precisely because of this, one of the first
reviewers of the book insisted that it was no “guidebook of a political party” [cartilha para
um Partido politico], but “a scientific book”62. Conversely, José da Silva Costa, when
reviewing the same book, reproached the Viscount for “spreading the bile of politics all over”
his work, “defining political parties” and, by doing so, incurring in “partiality”
[parcialidade]63. Politics as a blinding risk: the same point of view adopted by José de
Alencar when reviewing a constituinte perante a história (1863), from baron Homem de
Mello. This book was more a work of history than law, meaning that it was submitted to
other sets of demands, including the pursuit of “historical truth”64 and “historical justice”
[verdade histórica; justiça histórica]65; nevertheless, the problem of politics was also present.
Though the book was a precious account of the lost constituent assembly66, Alencar believed
that it was flawed, because too many people still alive knew characters with crucial roles in
the events depicted in the work. The historian, therefore, could not put himself “so high as to
serenely see and judge the turmoil of interests and passions”67. Homem de Mello, conversely,
contended that one could bet on individual intellectual ascesis: when the historian went into
the past and “penetrated into the necropolis of extinguished generations”, he should “shake
off current passions”68. Whether this was possible or not, both Alencar and Homem de Mello
believed that political positions should be left aside when one was writing. A single voice
raised to say the contrary. In the debate between the Correio Paulistano and França e Leite
Filho, the newspaper firmly stated that it was impossible to renounce one’s own political
beliefs to eulogize the late jurist’s work69; França e Leite Filho, conversely, made the point
that the ideas of his father did not came from a party; just like a previous review had stressed
that, though França e Leite had been a liberal, his book was not stung by the “prejudices of
ideas”70.
30 Political parties and strict ideologies must leave the study room, but personal convictions
could (or even must) be retained. Because, if one digs deeper, he will find that some parts of
what we call “political” today was still considered valuable by the Brazilian literary and legal
61
Unknown, “direito público brasileiro”, Diário do Rio de Janeiro, 133, 1857, p. 1,
http://memoria.bn.br/DocReader/094170_01/44710; Unknown, “boletim do dia”, 175, Diário do Rio de Janeiro,
1857, p. 1, http://memoria.bn.br/DocReader/094170_01/44878
62
Unknown, “o moderado”, O Moderado, 104, 1862, p. 1, http://memoria.bn.br/DocReader/830410/408
63
J. da Silva Costa, “Bibliographia”, Revista Jurídica, 1, 1862, p. 74-84,
http://memoria.bn.br/DocReader/819310/77; Unknown, “bibliografia”, A Auctoridade, 146, 1862, p. 4,
64
J. de Alencar, “Chronica”, Revista Mensal da Sociedade de Estudos Literários, 1, 1863, p. 159-170,
65
Unknown, “publicação importante”, Diário do Rio de Janeiro, 227, 1863, p. 1,
66
That is, the 1823 assembly dissolved by the emperor Peter I before he enacted the 1824 constitution.
67
J. de Alencar, “a constituinte perante a história”, Jornal do Commercio, 223, 1869, p. 2,
68
F. Inácio Marcondes Homem de Mello, “a constituinte perante a história”, A Actualidade, 563, 1863, p. 1,
69
Unknown, “consideração sobre a constituição”, Correio Paulistano, 5076, 1873, p. 1,
70
Unknown, “obra póstuma”, Diário de S. Paulo, 2338, 1873, p. 3
12
milieu. Reviewers lauded the civic effort of those seeking to better the national institutions 71,
to put the Brazilian state in tune with the most advanced nations, and to reinvigorate the bond
of faithfulness between citizen and the constitution 72. They did not tolerate governmental
pettiness under the spoils system; they strived for statesmen gazing beyond the horizon. Not
party politics: only public selflessness. Not petty power, but statecraft.
31 Here the author: dispassionate, rational, experienced, patriotic. But how should his
writings be?
32 To understand texts, one must understand to whom their authors are writing: the readers.
And, in XIXth century Brazil, public law had mostly a utilitarian purpose: whether it was for
judges73, state and national representatives 74, town councilors75, lawyers76, fiscal agents77 or
the clergy78, most books explicitly declared they were aimed at particular professional groups.
Monographic works usually targeted the practical world, but handbooks were not
automatically directed for teaching: some, as the Ensaio de direito administrativo, were
marketed for professional audiences79. “Useful” [útil] was an adjective frequently deployed to
compliment books80; Carlos Perdigão, more radically, opposed the novel (romance), which is
a “mill of words where the imagination is the engine”, to the “good works”, which must be at
once “useful” and a “glory for the country”. Few works, all of them generalistic, were
directed to the students of law schools 81 or to “the youth”82. This created a gap that could be
resented, as more than one reviewer pointed out for ecclesiastical law. Until 1887, when the
Lições de direito ecclesiástico of Ezequias Galvão da Fontoura were published, there were
three books on the discipline; but, according to one reviewer, they were almost none as far as
law students and seminarists were concerned: the books of Monte de Araújo (1857-1859) and
71
Unknown, “direito constitucional”, O Globo, 80, 1876, p. 2, http://memoria.bn.br/DocReader/369381/2316;
Unknown, no title, Diário de S. Paulo, 602, 1867, p. 1, http://memoria.bn.br/DocReader/709557/2321
72
Unknown, no title, Diário do Rio de Janeiro, 196, 1870, p. 1,
73
Unknonw, “ensaio sobre o direito administrativo pelo visconde do Uruguay”, Publicador Maranhense, 153,
1862, p. 4, http://memoria.bn.br/DocReader/720089/13291
74
Unknown, “a nova obra do Visconde do Uruguay”, Diário de São Paulo, 57, 1865, p. 2,
75
Unknown, “ensaio sobre o direito administrativo”, Publicador Maranhense, 153, 1862, p. 4,
http://memoria.bn.br/DocReader/720089/13291 Unknown, “regimentos das câmaras municipaes”, A província
de Minas, 330, 1866, p.3, http://memoria.bn.br/DocReader/222747/579
76
Unknown, no title, O Espírito-Santense, 51, 1871, p. 4, http://memoria.bn.br/DocReader/217611/172
77
No author. Almanak do Rio de Janeiro, Typ. Laemmert, 1856, p. 725
http://memoria.bn.br/DocReader/313394x/9749; Unknown, “apontamentos de direito financeiro brasileiro”,
Correio Mercantil, 197, 1855, p. 3, http://memoria.bn.br/DocReader/217280/10650; Unknown, “apontamentos
de direito financeiro brasileiro”, 59, Correio da Tarde, 1859, p. 3,
http://memoria.bn.br/DocReader/090000/4229; Unknown, “apontamentos sobre o contencioso administrativo”,
Diário de Pernambuco, 237, 1874, p. 2, http://memoria.bn.br/DocReader/029033_05/11386.
78
Unknown, “elementos de direito eclesiástico”, Jornal do Commercio, 203, 1859, p. 3,
79
Unknown, “ensaio sobre o direito administrativo”, Publicador Maranhense, 153, 1862, p. 4,
80
Unknown, no title, Jornal da Tarde, 27, 1878, p. 3, http://memoria.bn.br/DocReader/748919/1107; Unknown,
“recurso de graça”, Jornal do Pará, 208, 1878, p. 3, http://memoria.bn.br/DocReader/219339/1164
81
Unknown, “direito administrativo brasileiro”, Jornal do Commercio, 214, 1859, p. 4,
http://memoria.bn.br/DocReader/364568_04/14784; Unknown, “publicações literárias”, Diário de Pernambuco,
115, 1853, p. 2, http://memoria.bn.br/DocReader/029033_03/4022; Unknown, “jurisprudência”, Diário de S.
Paulo, 353, 1866, p. 3, http://memoria.bn.br/DocReader/709557/1343; Unknown, “obras publicadas”, Jornal do
Commercio, 579, 1829, p. 2, http://memoria.bn.br/DocReader/364568_01/2317
82
Unknown, “direito público brasileiro”, Diário do Rio de Janeiro, 133, 1857, p. 1,
http://memoria.bn.br/DocReader/094170_01/44710; Unknown, “boletim do dia”, Diário do Rio de Janeiro, 175,
1857, p. 1, http://memoria.bn.br/DocReader/094170_01/44878
13
Cândido Mendes (1873) were “precious books for consultation” – that is, too deep, too
complete, too reflexive for teaching – while the only handbook aimed at the classroom, the
one of Villela Tavares, was “too summarized” [resumido]83.
33 Mostly a practical knowledge, then. And one of the main issues that Brazilian practice had
to deal with was to build a new Brazilian scholarship – a new law and a new discourse to
match the new state. Some reviews measured if the books they were discussing had been able
to develop a “national doctrine”. This was particularly blunt with administrative law 84, a
branch of law also recently created and waiting for a new discourse to be developed around
the “virgin forest of our administrative law” 85. Assessing the book of Veiga Cabral (1859),
the second on the subject to be published in Brazil, a reviewer put to words his desire that our
literature of public law should discuss “the peculiar face of national institutions; to build, if
possible, a Brazilian theory, national, original, distinct from all streaks of foreign creations”.
Cabral had, conversely, fallen prey to some “prejudices from the French administration”,
though he had measured the “reading of Degerando and Cormenin” with the “American
character […] of the laws ruling us”86. Under the same criterium, the Viscount of Uruguay
was praised by another reviewer for the “eminently Brazilian color” of his book, which used
“our parliamentary history”, the authority of “our statesmen” and always “analyzed the
analogous institutions of more advanced peoples in comparison with those of Brazil” 87. The
handbook of Villela Tavares was saluted as the substitute of Franz Xavier Gmeiner, the
Austrian whose handbook being used in Brazil was deemed incompatible with our law 88.
Zacharias Góis de Vasconcellos was lambasted for too frequently citing the “constitutions of
other countries, whose circumstances are too different” from ours; for this reviewer, “which
value could have the authority of writers that opine while contemplating different hypothesis,
commenting and explaining different institutions?”89. Not that Brazilians were nativists:
Bandeira Filho was told, for instance, that his book could use more comparative law 90. But
Brazilians aimed for more: they wanted foreign doctrines to be adapted to our tropical
circumstances, not simply transplanted from overseas.
34 National, practice-oriented: was it all?
35 No. Jurists also defined implicitly how this doctrine should be written by using adjectives
to praise or criticize the literature under their eyes. There was hardly anything that could be
called a “methodological discussion” of the books: since law – especially this practice-
oriented version of it - was mostly conceived as a series of arguments deduced from the text
of statutes, there was little to do but to assess whether the arguments themselves were sound
and coherent. Adjectives did not vary too much: good books were those with the
83
Unknown, “livros e jornaes”, Correio Paulistano, 9309, 1887, p. 1,
http://memoria.bn.br/DocReader/090972_04/9334; with a similar position: Unknown, “direito eclesiástico”, O
Apóstolo, 26, 1888, p. 4, http://memoria.bn.br/DocReader/343951/11090
84
On the relationship between Brazilian administrative law and foreign authors, cf. A. Barrêtto de Almeida
Costa, “The Tropical Fado that Wanted to Become a European Samba. The Cosmopolitan Structure of Brazilian
Administrative Law Investigated with Bibliometric Data (1859-1930)”, Forum Historiae Iuris, no number,
2021, p. 1-57.
85
Unknown, “direito administrativo”, Jornal do Commercio, 253, 1874, p. 4,
86
Unknown, “comunicado”, Correio Mercantil, 284, 1859, p. 1, http://memoria.bn.br/DocReader/217280/16773
87
88
Unknown, “publicações literárias”, Diário de Pernambuco, 115, 1853, p. 2,
89
Unknown, “da natureza e limites”, Jornal do Commercio, 247, 1860, p. 1,
90
Unknown, no title, Jornal da Tarde, 27, 1878, p. 3, http://memoria.bn.br/DocReader/748919/1107; Unknown,
“recurso de graça”, Jornal do Pará, 208, 1878, p. 3, http://memoria.bn.br/DocReader/219339/1164
14
“straightforwardness of style and the clarity and facility of method”91, with a “clear style” and
“principles coordinating and giving life to science”92, with a “clear language at the reach of
everyone”93, with a “system”94. The examples could go endlessly95. They all converge to the
same points: clarity of style and logical method. Writing should not be convoluted, and the
arguments should smoothly derive from each other, connecting premises to conclusions, laws
to answers as the author proceeded from top down through “distinctions”96 of conceptual
pairs to the unavoidable and forceful conclusion. The archetype behind this description? The
handbook aimed at students or practicians. Carlos Perdigão says so: he elects as a model from
the “elementary writings”, that is, introductions or systematizations of disciplines. To write
such a work, a series of rare abilities were in order: authors should know all parts of a
discipline to “judge the relative value of facts” and “formulate generalities” from “a thousand
separated observations”97.
36 Organize what is known: not discover what is new. The objective of legal science was the
“enunciation and organization of scientific principles”98, not finding them. Originality might
be therefore desirable, but was by no means necessary, nor the most praised virtue. The
minister of the Empire, commenting the book from Liberato Barroso on public education,
stated that “if [his ideas] are not original, too difficult a desideratum in the current state of
social sciences, in his text are reproduced the doctrines of the most important writers” 99. An
advertisement of the book of Villela Tavares stated that his work was “a summary [resumo]
of all that is best from the most modern writers of ecclesiastical law” 100; for a marketing text
in the XIXth century, this was a compliment, but XXIst century professors might not take too
well if someone call their books a “summary”.
37 We now know how books should be written. But why were they written?
38 As we have discussed in the introduction, orality was still an important element of
Brazilian legal culture in the second half of the XIXth century. Jurists spoke and wrote as part
of a single praxis comprising both lawyering, production of public opinion and political
intervention; according to its objective, a text could be published in different forms, bearing
varying degrees of marks of orality. Past actors were aware of that, and they wrote about the
unequal significance of each literary genre. A review of the Ensaio from Uruguay, for
instance, decried that, in Brazil, the important men “disappear […], leaving behind the
ephemeral sparkle of the fugacious glories of the tribune”, while in France, the highest
thinkers “do not forget that the press is the most effective mean to illustrate the opinion, the
91
Unknown, “folhetim do jornal do comércio”, Jornal do Commercio, 194, 1855, p. 1,
92
93
94
Unknown, “a constituição política do império do Brasil”, Jornal do Commercio, 103, 1879, p. 3,
95
Unknown, “analyse da constituição”, Pedro II, 225, 1867, p. 1,
http://memoria.bn.br/DocReader/216828/8259; Unknown, “publicações literárias”, Diário de Pernambuco, 115,
1853, p. 2, http://memoria.bn.br/DocReader/029033_03/4022; Unknown, “livros e impressos”, Jornal da Noite,
950, 1874, p. 2, http://memoria.bn.br/DocReader/890820/3908
96
Unknown, “bibliografia”, Correio Mercantil, 233, 1859, p. 1, http://memoria.bn.br/DocReader/217280/16565
97
Unknown, “a constituinte perante a história”, Jornal do Commercio, 233, 1869, p. 2,
98
P. de Araújo Lima, Relatório do Ministério do Império, Rio de Janeiro, Typographia Imperial, 1862, p. 238,
99
Unknown, “a constituinte perante a história”, Jornal do Commercio, 233, 1869, p. 2,
100
Unknown, “direito eclesiástico”, Jornal do Commercio, 250, 1853, p. 4
15
most faithful interpreter of ideas: the book, the most enduring repository of thought” 101; for
Pimenta Bueno truly to become a publicist, he could not leave his speeches echoing in the
senate chambers, but had to capture them in paper and write a book 102. For Brazil to become a
true civilized nation, ideas could not vanish in the rooms of parliament after they were
uttered: they must be written down to endure and spark a debate, a reflection, a thought: a
culture.
39 But the press was not enough. In parliament, ideas last for minutes; in a newspaper, they
were retained for a day; only a book was meant for eternity. In 1857, for example, cannon
Joaquim Caetano Fernandes Pinheiro lamented that Brazil was so “sterile in books, but
fruitful in newspapers”103. Many books were first published in pieces in the press only to be
latter printed as works of their own, as Da natureza e limites do poder moderador104 and A
propriedade das minas105, precisely because, otherwise, their contents would not have
endured. And permanence was not the only reason good ideas should be organized into
books: for a reviewer of Cândido Mendes, in Brazil, “journalism is usually mercantile, and
literary publications are either not done or rickety”106. In newspapers, commercial interests
prevailed, while books could be sent out to the world with only “literary” concerns in mind –
especially if the author himself had financed printing.
40 In such a context, the relationship between legal literature and boiling political events
became tense. This is particularly evident in the debate of the early 1860s concerning the
responsibility of ministers of state for the acts of the moderating power 107. After Zacharias
Góes de Vasconcellos published his book as a collection of articles collected in the press and
speeches given in parliament, and the Viscount of Uruguay put a chapter on the subject in his
Ensaio108, Brás Florentino Henriques de Souza sent an intervention109 to the presses. A
reviewer, though, stressed that Souza had a double objective: even though he felt compelled
to engage with the “discussion recently raised at the court”, he did not want to produce a
mere “work for the moment” [trabalho de ocasião]. He thought the constitution should
endure for years to come; therefore, he wrote an analysis of the whole section of the
constitution that dealt with the moderating power and, when pertinent, engaged with current
101
102
Unknown, “correio mercantil”, Correio Mercantil, 179, 1857, p. 1,
103
“Jornalismo [é] em geral mercantil, e que as publicações literárias, ou não se fazem, ou são raquíticas”.
Unknown, “bibliografia religiosa”, Correio Mercantil, 249, 1857, p. 1,
104
Z. Goes e Vasconcellos, “da natureza e limites do poder moderador”, Dezenove de Dezembro, 259, 1860, p.
2, http://memoria.bn.br/DocReader/416398/2568; http://memoria.bn.br/DocReader/416398/2572;
http://memoria.bn.br/DocReader/416398/2578; http://memoria.bn.br/DocReader/416398/2581;
105
A. Herculano de Souza Bandeira Filho, “a propriedade das minas”, Gazeta de Notícias, 268, 1884, p. 2,
http://memoria.bn.br/DocReader/103730_02/7561; http://memoria.bn.br/DocReader/103730_02/7589;
http://memoria.bn.br/DocReader/103730_02/7671; http://memoria.bn.br/DocReader/103730_02/7743
106
Unknown, “obra de direito”, Diário de S. Paulo, 419, 1867, p. 2,
107
For a summary of this debate, cf. W. Guandalini Jr, O poder moderador. Ensaio sobre o debate jurídico-
constitucional no século XIX, Curitiba, Prismas, 2016, p. 1-123.
108
P. José Soares de Souza Souza, Visconde do Uruguay, Ensaio sobre o direito administrativo, Rio de Janeiro,
Thypographia Nacional, 1862, p. 1-520.
109
B. Florentino Henriques de Souza, Poder Moderador. Ensaio de direito constitucional, contendo a análise
do tit. V, cap. I da constituição política do Brasil, Recife, Tipografia Universal, 1864, p. 1-597.
16
issues110. Another reviewer summarized this tension: if the book did not deal with the
“politics of the day”, the politics of the day could not ignore “a book dedicated to the defense
of constitutional principles undermined by error”111. One eye on today and the other on
eternity: books were not simply meant as a political intervention, but they cannot be fully
disentangled from their political context. Not by chance, the Systema representativo (1868) of
José de Alencar was described positively as “actual” or “current” [atual]112, since its subject
touched the looming electoral reform – but the book was never meant to deal only with the
next legislative change.
41 We have described in detail each of the characteristics deemed by the Brazilian legal
culture as worth discussion in a book: virtues claiming praise, contrasted by vices calling for
reproach. We can consolidate them into a single table, a “chart of values” implicitly guiding
authors when reading and writing about books. This is table 1.
Importance Virtues Vices Reference

Major Utility - Book
Clarity Diffuse style Writing
Method/system Repository of Book
texts/compilation
Moderation/calm/sobriety Partiality/Involvement in Author/writing
political fights
Minor Abundance of citations Excess of citations Writing
Originality Plagiarism Book
Experience - Author
Abnegation Vanity Author
Adaptation of foreign ideas Importation of foreign ideas Book
- Mercantile Book
Table 1 Chart of epistemic virtues and corresponding vices in Brazilian XIXth century legal literature. All
adjectives or substantives were used by reviewers themselves, or are derivations of such terms.
42 Reviewers praised and bemoaned both authors, writing and methods, providing important
clues on how a legal book should be written. They coalesced around some virtues and vices,
appointed above. We, creatures of the XXIst century, might relate to some of them, while
others might strike us as weird. For instance: though we today value clear, straightforward
writing, we would never consider it to be among the most important virtues of scholars. In the
XIXth century, though, reviewers almost always commented on style – remarks that, for
modern ears might strike as clumsy laudations more appropriate for high school essays than
for professors’ books. With originality, the opposite happened: the most cardinal virtue of
contemporary research was deemed in XIXth century valuable, but not necessary. Heresy for
contemporary funding agencies.
43 May the reader not think that such a table existed in reality, though: it is a model I
developed from fragmentary remarks, lost clues, sometimes even single adjectives. This
“chart of values” can be useful for a first approach to the sources, but we must bear in mind
that this scheme was never unanimous. Some virtues were in dispute, reflecting wider shifts
from the “oral”, “eloquent” paradigm of jurist to the “written”, “professorial” one. For
instance, a reviewer praised Zacharias Góes e Vasconcellos for the “happy quill of who
110
Unknown, “do poder moderador”, Diário de Pernambuco, 191, 1864, p. 4,
111
Unknown, no title, Constitucional Pernambucano, 31, 1864, p. 1,
112
Unknown, “reforma eleitoral”, Correio mercantil, 177, 1868, p. 2,
17
writes as he speaks”113; Analyse e commentário da Constituição, from Souza (1867, 1870),
was praised for having not only a scientific, but also a literary value114. These remarks do not
bode well with Carlos Pedigão’s rebuttal of novels and literature in general, a useless “mill of
words”, as we have already discussed. Style was, therefore, at least to some extent, a
contended issue.
44 I have described; now, I must explain. Why was such a code of values in force?
45 The literature of public law was the discourse apt for the “university” that Brazil had in
the XIXth century, that is, what we may call a “pre-Humboldtian model”115. In the
XVIIIth century, European universities were seen as outdated guild-like institutions; most new
knowledge was produced in academies and learned societies. This led to a perceived
decadence and a drain of students. To attract attention, universities started to hire as
professors the celebrities of their times: that is, famous writers. This mostly German
phenomenon stimulated prospective academics to think that to be hired, they needed to
publish: books and articles became their way into the chairs116. Starting in 1810s, Prussia, to
culturally compensate for the military defeats in the Napoleonic wars, initiated university
reforms that changed the way in which this old institution worked; for our ends here, the
fundamental novelty was the principle of unity of research and teaching, with the model of
seminaries117. This new “German model” became a reference throughout the XIXth century
over the “French model”, which had for some time even closed universities in favor of
professional schools118. By the late XIXth century, these ideas were combined in the United
States with local elements to give birth to the modern research university.
46 This new institution required and stimulated a new conception of knowledge and
knowledge production. In the XIXth century, professors in Germany were ever more expected
to produce research, that is, to advance knowledge, to discover new information, to expand
the borders of science. Erudition was being more and more left aside for the new values of
research; values that gravitated around originality119. It was precisely at the turn of the
XIXth century that originality left its old meaning of stemming from the origin and acquired its
contemporary connotation of stemming from the individual, of individual creativity120.
47 The new mode of knowledge production, however, did not take foot immediately;
particularly in Latin America, professional schools still held sway over higher education. The
113
“Pena feliz daquele que escreve como fala”. Unknown, “crônica da quinzena”, Revista Popular, 16, 1862, p.
58-60, http://memoria.bn.br/DocReader/181773/5984
114
Unknown, “analyse da constituição”, Pedro II, 225, 1867, p. 1,
115
It is a myth to attribute all the changes of German universities in the early XIX th century to von Humboldt
and the Berlin University; a myth that was created and was useful at the turn of the 20 th century, when that very
same model was in crisis. Cf. M. Ash, “Bachelor of What, Master of Whom? The Humboldt Myth and
Historical Transformations of Higher Education in German-Speaking Europe and the US”, European Journal of
Education, 41, 2006, p. 245-267. However, the expression “humboldtian model” is widely known and more
evocative than “XIXth century Germany university model”, which is more precise.
116
On the imperative to publish in Germany between the 18th and 19th century, cf. P. Josephson, “The
Publication Mill. The Beginnings of Publication History as an Academic Merit in German Universities, 1750–
1810”, The Humboldtian tradition. Origins and legacies, eds. P. Josephson, T. Karlsohn and J. Östling, Leiden
and Boston, Brill, 2014.
117
On this change as one of the “three transformations” of the University, cf. B. Wittrock, “The modern
university. The three transformations”, The European and the American University since 1800. Historical and
sociological essays, eds. S. Rothblatt and B. Wittrock, Cambridge, Cambridge University Press, 1996.
118
On this “German model”, cf. C. Charle, “Patterns”. A history of the university in Europe. Volume III.
Universities in the nineteenth and early twentieth century (1800-1945), ed. W. Rüegg, Cambridge, Cambridge
University Press, 2004.
119
W. Clark, Academic Charisma and the Origins of the Research University, Chicago, The University of
Chicago Press, 2006, p. 211-220.
120
Ibidem p. 220.
18
first university faculty of sciences and letters, the cradle par excellence of pure research,
would not be created in Brazil before the 1920s121. Humanities in general, and law in
particular, faced a particularly difficult path towards the research model. David Lindenfeld
demonstrated this in his studies of the German sciences of the state (Staatswissenschaften).
For most of the early XIXth century, this discipline discussed mere classifications of received
wisdom; for most of the XIXth century, prestige spawned from textbooks, and not from
monographies122. This demonstrates that the task of professors was not to create new
knowledge, but to organize and synthesize what was already known to provide ground for
practical debates123. It was only by the 1890s that, according to Lindenlfeld, administrative
law moved from the classificatory to a deductive model, “complet[ing] the transition to a full-
fledged juristic discipline”124.
48 The early, professional, erudite model was the one prevailing in Brazilian universities.
Professors were expected to organize and transmit; this is why “system” of method and
clarity of language were the foremost values asked from books in reviews. Not that anybody
thought that science was static: a review published in 1888 stressed that Ezechias Galvão da
Fontoura could develop his book in new editions, for “progressive are the legal sciences”125.
But this is an intervention already from the end of the century, when new perspectives were
arriving. And most of these “developments” took place by the author refining already known
principles. Knowledge should become ever more organized and logical, and by doing so, it
progressed; change was not associated with novelty and discovery, but with this greater
refinement. This is why originality was a virtue, but a minor one: what was original was
mostly the presentation of knowledge, not knowledge itself.
49 This would have deep consequences for discussions on plagiarism, which is the theme of
our next section. The pair virtue-vice of originality and plagiarism is at the core of the 21th
century research paradigm; by analyzing what these two qualities were and were not for 19 th
century jurists, we will be better positioned to understand how and why the scholarship
produced two centuries ago differ from what legal scholars produce nowadays.
IV – Was the Viscount of Uruguay a plagiarist? Debating

originality and plagiarism
50 Once, a student at the fourth year of law school caused shock and anger when he accused
a senator and the founding father of Brazilian administrative law of plagiarism.
51 It was a winter Tuesday in 1862 when the Revista Jurídica came out of the presses with a
10-page review of the Ensaio de direito administrativo written by José da Silva Costa 126, who
was still attending the São Paulo Law School. He “lament[ed] that the merit of originality
appears so little in this book”, for its author had in many places simply translated foreign
authors into Portuguese, “leaving aside the needed and due citation”. Was the founding
121
On the state of Latin American universities throughout the XIX h and early XXth century and its relations with
European models, cf. E. Shils and J. Roberts, “The diffusion of European models outside Europe”, A history of
the university in Europe. Volume III. Universities in the nineteenth and early twentieth century (1800-1945), ed.
W. Rüegg, Cambridge, Cambridge University Press, 2004, p. 1-729.
122
D. Lindenfeld, The practical imagination. The German sciences of the state in the nineteenth century,
Chicago, Chicago University Press, 1997, p. 46.
123
Ibid., p. 94.
124
Ibid., p. 304.
125
Unknown, “direito eclesiástico”, O Apóstolo, 26, 1888, p. 4, http://memoria.bn.br/DocReader/343951/11090
126
J. da Silva Costa, “Bibliographia”, Revista Jurídica, 1, 1862, p. 74-84,
http://memoria.bn.br/DocReader/819310/77; J. da Silva Costa, “bibliografia”, A Auctoridade, 246, 1862, p. 4,
19
work127 of Brazilian administrative law tainted by the egregious mark of plagiarism? Such
stark allegation demanded an equally blunt proof. And Costa did not back off: he published
11 fragments written by Uruguay side by side with 11 fragments from which the first were
translations. The original works came from the hands of the foremost exponents of French
administrative law: Macarel (3 fragments), Laferrière (3), Vivien (2), Lefebvre (1), Cormenin
(1), Tocqueville (1). In figure 3 we can see how Costa presents the smoking gun he found in
Uruguay’s hand.
Figure 3 Two pages from the review published by José da Silva Costa in the Revista Jurídica. Source:
http://memoria.bn.br/docreader/819310/80
52 Uruguay had recommended in the book, though, that the reader should also consult the
work of Vivien at the end of the chapter in which the Brazilian publicist used a phrase from
the French author. Not enough, according to Costa: “not doing so in due time, [Uruguay]
induces us to believe that he called to himself the paternity of what he had not birthed” 128. In
127
On the “founding father” of Brazilian administrative law, cf. A. Cerqueira-Leite Seelaender, “O Direito
Administrativo e a Expansão do Estado na Primeira República. Notas preliminares a uma história da doutrina
administrativista no Brasil”, Revista do Instituto Histórigo e Geográphico Brazileiro, 485, 2021, p. 170-171.
Though there are a few handbooks published before the work of Uruguay, no one is as deep or was as
recognized as the Ensaio. On the role of this book, cf. J. Leão Lobo, “Resenha historiográfica de Ensaio de
Direito Administrativo (de Visconde do Uruguay)”, Quaestio iuris, 7, 2014, p. 1034-1042; M. de Moraes
Silveira, “Referência ao Estado e instituições peculiares ao Brasil. Uma leitura do Ensaio sobre o direito
administrativo”, Cultura Intelectual em Perspectiva. Linguagens, instituições e trajetórias, eds. C. Araújo
Cabral, R. Amaro de Oliveira Lanari, T. Lenine Tito Tolentino and V. da Silva Cunha, Belo Horizonte,
Letramento, 2019.
128
J. da Silva Costa, “Bibliographia”, Revista Jurídica, 1, 1862, p. 76
20
other parts, the copy had been more subtle: “the author of the Ensaio, using the substance of
some writers, adapts it to his own style”. In the end, a stark conclusion: “little, too little is of
his own in Ensaio”129. But he reserved two kind compliments to Uruguay: the book had the
merit of reproducing laws and decrees that are hard to find and of “translating (…) opinions
and fragments from many writers”130. I do not believe that this was the glory Uruguay was
chasing after writing such a long and well-researched monography.
53 The old senator did not bother to answer: others took this mission in their hands. Weeks
after the Revista Jurídica had been published, O Constitucional printed quite a stark response
to Costa. I will not dwell in the details of this interesting debate, for our interest lies in a
restrict question: what was, for them, plagiarism? Or, more precisely, who was a “plagiarist”,
for the O Constitucional said the Viscount had been accused of “being a plagiarist”, and not
of “committing plagiarism”. For the reviewer, it was no breach of ethics to agree with the
most important authors in “rudimentary” definitions and basic principles, truths that belonged
to no one and that Uruguay had simply accessed through colleagues. Discoverers of the
central tetets of a scientific field do not need to be constantly credited: as one does not need
to reference Newton every time they mention gravity, discussions of Administrative Law can
proceed without constant reference to the French jurists. The viscount had even written in his
book: “to not make this book too long and boring, I will limit myself in many points to
general considerations, gathered and based in many authors: for I do not invent. You can see:
Macarel (…), Cabantous (…), Trolley (…), Vivien (…), Pradier”131.
54 Another review published in the same newspaper 132 implied that the plagiarism row had
gotten entangled in political disputes: the liberal press had simply ignored the Ensaio so far,
and when the accusation had risen, only liberal newspapers had published the allegation.
Costa, offending and ironizing Uruguay, had “mistaken his mission of critic for that of
politician”133. The reviewer classified the accusation of plagiarism as “banal”, for the
Viscount had written that one of his objectives in producing the book was precisely to spare
his readers the burden of consulting all the existing works of administrative law; “these words
exonerate him completely of the need to precede any doctrine with the name of its author”134.
55 José da Silva Costa indeed would serve the Liberal Party and would be appointed to the
Council of State. His obituary135 did not mention his juvenile spat with the late conservative
leader. The scandal seemed to have fallen into oblivion little after it was raised.
56 It is not up to me to judge Uruguay – or Costa. But to understand what was happening in
the quarrel between the senator and the student, we must investigate what was considered
plagiarism in XIXth century Brazil.
57 Previous research has shown that Uruguay would not have much to be ashamed of in
comparison to what others have done. Airton Ribeiro da Silva Júnior has showed that the
whole book Elementos de Direito das Gentes (1851), of Pedro Autran da Matta Albuquerque,
129
Ibid., p. 80
130
Ibid., p. 84
131
Unknown, “O Sr. Visconde do Uruguay”, Constitucional, 82, 1862, p. 1,
http://memoria.bn.br/DocReader/235709/325.
132
Unknown, “análise da crítica”, O Constitucional, 119, 1862, p. 1,
http://memoria.bn.br/DocReader/817155/471; Unknown, “análise da crítica”, O Constitucional (SP), 120, 1862,
p. 1, http://memoria.bn.br/DocReader/817155/475; Unknown, “análise da crítica”, O Constitucional (SP), 123,
1862, p. 2, http://memoria.bn.br/DocReader/817155/488; Unknown, “análise da crítica”, O Constitucional (SP),
124, 1862, p. 2, http://memoria.bn.br/DocReader/817155/492.
133
Unknown, “análise da crítica”, O Constitucional (SP), 124, 1862, p. 2,
134
Unknown, “análise da crítica”, O Constitucional (SP), 124, 1862, p. 2,
135
Unknown, “Conselheiro Silva Costa”, Jornal do Commercio, 41, 1923, p. 2,
21
is nothing more than an abridged translation of Droit des gens, of Klüber. Silva Júnior proved
that Klüber’s book was known and read in the very city where Matta Albuquerque worked,
meaning that he could not conceal that his book was mostly a translation – though a creative
one. The next Brazilian books on international law, published in 1867 and 1889, followed
heavily (sometimes even literally) the work of Matta Albuquerque: plagiarisms of
plagiarisms136. Anna Clara Lehmann Martins also showed that Ezechias Galvão da Fontoura’s
Lições de Direito Ecclesiástico (1887) had parts directly copied and translated from French
canonist Marie Dominique Bouix, who in turn did the same with other lawyers137. In military
law, Augusto de Arruda’s book copied extensively from Thomas Alves Jr.’s one138. If one
looks outside law, the same pattern remains: the book Direitos das mulheres, injustiça dos
homens, from Nísia Floresta, presented as a “free translation” of Mary Woolstonecraft’s A
Vindication of the Rights of Women, was actually a much literal translation of another
book139; the first thesis of psychiatry published in Brazil was mostly a patchwork of two
French texts, one mentioned by its author and the other one not140.
58 Uruguay’s case differed from all of those in one crucial point: he was the only one
accused of doing something wrong. Why?
59 The definition of what was plagiarism was in dispute: in Brazil, lawyers, writers and
editors were wrangling to define the roles of each people in the chain of production of ideas
and books. In the XVIIIth century, plagiarism acquired its current negative meaning141,
following the emergence of the modern concept of authorship, which would in the
XIXth century become entangled with the romantic notion of the work as expression of the
individuality of the author142. However, concrete actions that might be considered today as
plagiarism would not necessarily be condemned back then: legal action was mostly
concerned with counterfeiting and therefore aimed to protect editors, not writers 143. The very
emphasis of the concept was quite different, as we can see in dictionaries of the Portuguese
language. In Raphael Bluteau’s dictionary, for instance, there is no plagiarism, only the
plagiarist, which is defined as “one who attributes to himself the works of other authors” 144.
Sixty years later, Antônio Moraes e Silva’s dictionary provided an entrance on plagiarism,
but the emphasis was still on the person, not the act: “plagiarism. The fraud or vice of the
136
A. Ribeiro da Silva Júnior, “Brazilian literature on international law during the empire regime. Or the
diffusion of international law in the peripheries through appropriation and adaptation”, Revista de Direito
Internacional, 15, 2018, p. 60.
137
A. Clara Lehmann Martins, “The fabric of the ordinary. The Council of Trent and the Governance of the
Catholic Church in the Empire of Brazil (1840-1889)”, PhD Thesis, Belo Horizonte and Muenster, Universidade
Federal de Minas Gerais and Universitat Muenster, 2021, p. 52-53.
138
A. Barrêtto de Almeida Costa, “Torments Through Time. Pardon in Brazilian Military Penal Law between
Early Modern Rules and Liberal Justice (Council of State, 1842-1889)”, Revista Brasileira de Direito
Processual Penal, 7, 2021, p. 1057-1096.
139
M. Lúcia Garcia Pallares-Burke, Nísia Floresta, O Carapuceiro e outros ensaios de tradução cultural, São
Paulo, Hucitec, 1996, p. 1-212.
140
A. Maria Galdini Raimundo Oda, “A primeira tese brasileira sobre a alienação mental”, Revista
Latinoamericana de Psicopatologia Fundamental, 16, 2013, p. 630-641.
141
For a philological history of the term “plagiarism”, cf. R. Ferreira Costa, “O estudo diacrônico da mudança
semântica da palavra “plágio””, Revista da Anpoll, 39, 2015, p. 128-140.
142
On the development of the romantic notion of authorship and its impacts in contemporary copyright law, cf.
M. Woodmansee, “The “romantic” author”, Research handbook on the history of copyright, eds. I. Alexander,
T. Gómez-Aróstegui and H. Tomás, Cheltenham, Northampton, Edward Elgar, 2016.
143
On the relationship between writers and editors and the material conditions of the emergence of the concept
of individual authorship, cf. M. Woodmansee, “The Genius and the Copyright. Economic and Legal Conditions
of the Emergence of the 'Author'”, Eighteenth-Century Studies, 17, 1984, p. 425-488.
144
R. Bluteau, Vocabulario portuguez, e latino, Coimbra and Lisboa, Collegio das Artes da Companhia de Jesus
and Officina de Pascoal da Sylva, 1712-1728, p. 48
22
plagiarist”145. Luís Maria da Silva Pinto followed the same trend 146; only in 1873 both terms
became equivalent and plagiarism was defined as “to attribute to oneself thoughts,
expressions or part of the literary works of an author”147. Note that the definition became
more granular: different from Bluteau, the last dictionary considers plagiarism not only to
claim authorship of the work of others, but also of parts of them or single ideas.
60 In the 19th century, author rights148 were anything but granted. In Brazil, in the first
decades after the independence, contrafação, that is, full copy of works, was both a lucrative
business for editors and a crime for the 1830 Criminal Code (art. 306). Portuguese books
were especially prone to fall prey to these practices149. By the middle of the century,
politicians felt compelled to regulate the rights of authors to protect them from greedy editors
and theater owners150. In 1857, the first bills intending to regulate author rights were filled
before the Brazilian parliament; they failed to became law, but they fostered debates in the
public opinion151. Years later, in 1875, a new bill would be filed. And by the most adequate
person within the empire: José de Alencar, one of the foremost Brazilian jurists, former
minister of justice, and, most importantly, one of the most famous novelists in the nation. He
fomented a debate on the role and rights of authors that would be consequential, though a law
regulating this matter would only come in 1898152.
61 Copyright was indeed an international issue by the late XIXth century. One famous example
can help us to see that. In 1858, the celebrated brothers Wilhelm and Jakob Grimm found out
just before Christmas that Ferdinand Schmitt had published a collection under his own name
in which most of the stories were a word-by-word reproduction of their work; they obviously
filed a lawsuit. Before the judge, Schmitt did not shy away from his actions: he indeed
alleged that, if the fairytales had been collected from the people, as the Grimms stated, they
belonged to the people, and could be reproduced by anyone. And he won – at least on the first
level. The Grimms had to wait the end of the 7-year-long lawsuit to assert their right at the
appeal level153. In the same year of 1858, the first international congress of authors met in
Brussels, giving birth later to an international association presided by Victor Hugo, which
would in 1886 give rise to the Berne Convention, an international treaty on the protection of
literary and artistic rights154.
62 The nature of authorship was changing. Until the early XIXth century, plagiarism was a
“vice” as described by Bluteau155, that morally tainted those copying others; hence the
145
A. de Moraes and R, Bluteau, Diccionario da lingua portuguesa, Lisboa, Simão Tadeu Ferreira, 1789, p. 458.
146
L. Maria da Silva Pinto, Diccionario da lingua brasileira, Ouro Preto, Typographia de Silva, 1832, p. 825.
147
D. Vieira, Grande diccionário português. Ou thesouro da língua portuguesa, Volume quarto, Porto, Editores
Ernesto Chardron e Bartholomeu H. de Moraes, 1873, p. 814.
148
I use the term author rights as a direct translation of the continental concept droits d’auteur/direito de autor,
which is wider than the common law notion of copyright, which is mostly economical.
149
L. Hallewell, O livro no Brasil. Sua história, Sâo Paulo, EdUSP, 2012, p. 233-235.
150
For the process of professionalization of literary authorship in Brazil, cf. M. Lajolo and R. Zilberman, “A
profissionalização do escritor no Brasil do século XIX”, Fragmentum, 45, 2015, p. 65-92.
151
On the perspective of regulation of author rights, cf. J. Bastardis, “Originalidade literária no Brasil. Sobre as
condições de institucionalização da prática literária no processo de consagração dos escritores nacionais (1830-
1920)”, PhD Thesis, Rio de Janeiro, Universidade Federal do Rio de Janeiro, 2017, p. 45-78.
152
On the role of José de Alencar in the definition of author rights in Brazil, cf. R. Camargo de Godoi, “José de
Alencar e os embates em torno da propriedade literária no Rio de Janeiro (1856-1875)”, Estudos Históricos, 30,
62, 2017, p. 573-596; A. Alves Ferreira, “José de Alencar e a edição de romances no Brasil do século XIX”,
Master Thesis, Universidade de São Paulo, São Paulo, 2014.
153
On this case, cf. V. Höppe and K. Renner, “XY (ungelöst)”, Die Grimmwelt. Von Ärschlein bis Zettel, eds. A.
Hürlimann and N. Lepp., Kassel, Sieveking Verlag, 2015.
154
On the history of this convention, cf. P. Burger, “The Berne Convention. Its History and Its Key Role in the
Future”, Journal of Law and Technology, 3, 1988, p. 1-70.
155
Or of “bad taste”, cf. P. Beneduce, Il corpo eloquente. Identificazione del giurista nell’Italia liberale,
Bologna, Il Mulino, 1996, p. 354.
23
emphasis of dictionaries on “plagiarists” instead of “plagiarism”. As time passed by,
economic interests get more in the way and law was called to action: plagiarism came to be
named and would soon become a crime. The actions considered to be plagiarism also
expanded, from classical counterfeiting of whole books to stealing ideas. From agent to
concept, from vice to crime, plagiarist/plagiarism morphed into an abstracted entity adequate
to be used by law – differently from the all too concrete plagiarist. Even if the Viscount of
Uruguay had plagiarized a few phrases, he was by no means a plagiarist: his cultural milieu
focused on the person and the work, not on fragments, absolving him. Only a dissociation
between the action and the agent, between acts plagiarism and the moral standing of the
author, could allow for the modern notions of plagiarism/originality.
63 The accusations against Uruguay were uttered in the middle of legal turmoil, in which
change was in the horizon and instability was riffle. What the old statesman considered to be
standard practice could very well strike a newly minted student as dishonesty. A text from
Pedro Américo might clarify the more flexible standards of originality shared by Uruguay.
Américo, perhaps the most famous painter in XIXth century Brazil, lived in Florence, where he
published a Portuguese translation of his “discourse on plagiarism”, given in 1880 before the
Association of Dramatists in Lyon, France. He cites a dazzling amount of examples of artists,
such as Shakespeare, Raffaello, Dante and Molière, to prove that they had never created ex
nihilo, but simply elaborated and renewed creations from the past, giving them higher force
and meaning. For Américo, then, “originality lies not as much in the absolute independence
of the conception as much as in the peculiar form of each author” 156; that is, original creation
is the insertion of individualism into a previous tradition, in a process of “aesthetic
assimilation”157. Conversely, the plagiarist has as “characteristic trace the constant absence of
great individual qualities”158, for he cannot give “progress”159 to previous ideas. There was no
problem in the “coincidence of ideas or forms” among those “collaborating casually or
intentionally […] in the perfecting and immortalization of the single ideal” 160. If Américo had
any interest in law, he could have said that Uruguay was simply collaborating with Macarel,
Vivien and Cormenin to immortalize the ideal of administrative law. Neither Michelangelo
nor Dante had invented each single image in their paintings, each word in their poems: why
should Uruguay create each word of his own masterpiece?
64 This sort of reasoning would soon vanish in the path towards contemporary academic
standards. May we make one short incursion into a single case from another time to
understand how far removed the XIXth century conceptions were from our contemporary
understandings.
65 Francisco Cavalcante Pontes de Miranda161 is one of the most revered Brazilian
XXth century private lawyers. In 1936, he presented his candidacy to the chair of Private
International Law at the Rio de Janeiro Law school; he, however, would not effectively enter
the competition. Haroldo Valladão162 (1939), another candidate, published an entire book
156
P. Américo, Discursos, Firenze, Imprensa de l’arte della stampa, 1888, p. 129.
157
Ibidem, p. 105.
158
Ibid., p. 109-110.
159
Ibid., p. 123.
160
Ibid., p. 124.
161
Francisco Cavalcante Pontes de Miranda (1892-1972) was one of the most famous jurists in XX th century
Brazil. He was a second-level judge at the Tribunal of Rio de Janeiro and frequently gave legal opinions. He is
credited with giving amore scientific outlook at Brazilian law, especially with his early hork Sistema de ciência
positive do direito. His most famous work, however, is Tratado de direito privado, a 60 volume-long take on all
aspects of private law with profuse citations to foreign doctrine. He is credited with having created the three-
fold theory of the legal transaction (negócio jurídico): existence, validity, efficacy.
162
Haroldo Teixeira Valladão (1901-1987) was a Brazilian jurist, judge and administrator. From 1929 onwards,
he was a professor of Private International Law at the University of Rio de Janeiro. In the 1930s, he was a
criminal and electoral prosecutor in Rio de Janeiro. He was a president of the Institute of Brazilian Lawyers
24
accusing Pontes de Miranda of having plagiarized almost the whole thesis presented for the
competition163. Most fragments were translations from French or German authors, or even
copies from Brazilians; Valladão presented them almost in the same way as Costa had
presented his case against the Viscount of Uruguay eighty years before, as can be seen in
figure 4. Could this be an emerging literary genre – the shaming of plagiarists?
Figure 4 Pages 34 and 95 of Haroldo Valladão's Impugnação à These..., confronting fragments of Pontes de
Miranda thesis with the sources from which he had allegedly copied them.
66 Though form might be similar, contents differed. More law schools and a more dynamic
editorial market, coupled with the birth of the first universities, had provided the ground upon
which a new academic culture would develop in Brazil in relative autonomy from parliament
or public opinion. The terms used by Valladão in 1939 to reproach Miranda are much
different from those used by Costa in 1862. He stated that Pontes de Miranda’s work “has no
scientific value” and had “not [reached] the bare minimum effort of research” [mínimo
trabalho de investigação]. Presenting the work of others as his, Pontes de Miranda would be
“deceiving the public”164. According to Valladão, Pontes copied especially fragments in
which authors discussed literature, therefore making the public believe that he had analyzed
an extensive bibliography which had, in fact, been gathered by others; these others, Valladão
calls “victims” [vítimas]165. Pontes had produced a “slightly annotated reedition of those
books”166. This was precisely what Pedro Autran da Matta Albuquerque had done in the
(1943-1946), General Consultant of the Republic (1947-1950) and judge of the Superior Electoral Tribunal
(1955-1959). He represented Brazil in several international conferences of Private International Law. Cf.
CPDOC, “Haroldo Teixeira Valadão”, Dicionário biográfico brasileiro, ed. A. Alves de Abreu, Rio de Janeiro,
FGV, 2001, p. 1-2.
163
On his actions in the 1930s and 1940s, cf. M. de Moraes Silveira, “Um jurista em tempos de guerras. A
atuação intelectual de Haroldo Valladão nos anos 1930 e 1940, entre o “Velho” e o “Novo Mundo””,
Temporalidades, 4, 2012, p. 278-298.
164
H. Valladão, Impugnação à these e a trabalhos apresentados pelo candidato bacharel F. C. Pontes de
Miranda no concurso para professor catedrático de Direito Internacional Privado na Universidade do Brasil,
São Paulo, Revista dos Tribunais, 1939, p. 9.
165
Ibid., p. 10.
166
Ibid., p. 11
25
1850s; but what had been a harmless act in the middle of the XIXth century could have serious
tort, administrative and perhaps even criminal law consequences by the middle of the XXth.
67 Pontes de Miranda had to abandon the competition, and the accusation of plagiarism
against him has resurfaced in 2016167; the one levelled against Uruguay, differently, has
vanished from Brazilian cultural memory altogether. Similar actions had widely different
meanings in 1862 and 1939, with starkly discrepant consequences. If originality was already
important by the 1860s, what this word meant, and its importance was very different from
what it is today. Before copyright, before academic research, copying some phrases,
reproducing common-place definitions and loosely attributing authorship were peccadillos,
paling in comparison with the intellectual achievements of a text. In the 1930s, these
practices had already been casted away as anathema. The difference between those two
contexts was, in a synthesis, the ever-growing role of originality and of individual authorship.
V – Professional schools, literary law: final remarks

68 Good books are those that best serve the objectives of scholarship. As these ends change
over time, epistemic virtues also develop. In the last few pages, we could see that
XIXth century Brazilian public law had standards of quality very different from our own.
These divergences result from the different place that legal literature occupied in Brazil:
books were not pieces of “research”, but organized knowledge for instruction or professional
guidance.
69 Books should be, first and foremost, clearly written, methodically organized, practice-
oriented and soberly intoned; their writers must be thoroughly prudent, deeply reflexive and
mildly nationalistic. Books were clearly oriented for either students or lawyers: their very
heart was to present an already existing science, not properly to create new knowledge.
Science advanced, of course. But through different paths from ours: scholarship was meant to
identify principles, to refine reasonings, to scrutinize arguments; that is, to acquire an ever-
greater conscience of the internal order of the body of knowledge transmitted by tradition, to
adapt a received science into new social context, to safeguard the soundness of its internal
logics. Not – necessarily - to find something new.
70 Originality was important? Sure. But much less than today. It had more to do with
originality of presentation and of arguments, not with originality of questions and answers, as
is the case nowadays. Legal books did not have to answer to “research questions” that must
be original: research itself did not exist in the legal sciences – at least, not in the same sense
as today. Legal scholarship should instead give clear and useful solutions to practical
problems.
71 This situation, however, was changing in the second half of the XIXth century, as distant
echoes of the research university were being heard; at the turn of the century, new methods in
public law (Italian and German scientific schools) and private law (sociologistic approaches,
free school of law, the social question) would undermine the basic conception of legal
knowledge as reelaboration of previously held information; and in the 1920s and the 1930s,
the birth of the first Brazilian universities and of social sciences would open the path for law
as an academic discipline to be confronted with “research” as a mode of knowledge
production, with a specific set of practices: research articles, graduation system, methodology
167
A. do Passo Cabral, “Alguns mitos do processo (III). A disputa entre Pontes de Miranda e Haroldo Valladão
em concurso para professor catedrático na Universidade do Rio de Janeiro entre 1936 e 1940”, Verbo Jurídico,
no number, 2016, p. 1-48; A. Soares da Costa, “Pontes de Miranda e a acusação de plágio. Anotações à margem
de Antônio do Passo Cabral”, Academia.edu, no number, 2016, p. 1-9; A. Lucas Fernandes, “Sobre o problema
da mistificação e de se tocarem pontos complexos do tecido da realidade. O caso do plágio de Pontes de
Miranda”, Doalfianas, no number, 2016, p. 1.
26
discussions, etc. Much was gained: more interdisciplinary approaches, a proximity with the
social sciences and more robust knowledge of the social reality, for instance. On the other
hand, this “research paradigm”, with an overemphasis on originality, might have prompted
false claims of novelty, an eagerness in some scholars to slightly redescribe known objects
with different concepts, with little increase of knowledge, and the modern evaluation systems
of universities, with its well-known vices: publish or perish, primacy of quantity over quality,
salami-science etc.
72 Law, though slowly, has incorporated most features of the research-oriented paradigm
throughout the XXth century. I believe, however, that this reception is yet to be completed. To
this day, law is still a professionally-oriented discipline, and handbooks have an oversized
importance when compared with neighboring disciplines. Our field is a hybrid between the
research paradigm and the professional one; whether they can coexist, or whether there are
better arrangements than the ones we have currently crafted is a matter for further debate.
27

What Is A Good Book? Epistemic Virtues and The Role of Originality in Brazilian Public Law Scholarship (1820s - 1889)

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What Is A Good Book? Epistemic Virtues and The Role of Originality in Brazilian Public Law Scholarship (1820s - 1889)

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What is a good book?

Epistemic virtues and the role of

I – Producing legal knowledge: introduction

II – Writing about law books in XIXth century Brazil: literary

2.1 On the left, a review on the first page49;

2.2On the right, a publication note on the second page50.

III – Evaluating books (and authors): standards of quality in the

Importance Virtues Vices Reference

IV – Was the Viscount of Uruguay a plagiarist? Debating

V – Professional schools, literary law: final remarks

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