History Of Criminal Law From The Roman Justice

4665 words - 19 pages

With the name of "dogma of the completude", a phenomenon appears of the medieval roman tradition - from the times where the Roman law goes being, to the few, considered as the Right for excellence, of a time for all statement in the "iuris Corpus" -, that it compelled the jurist and the Judge to trust the sufficiency of the legal system - without necessity of if helping in the fairness -, workmanship of an infallible State in the construction of the system, capable of foreseeing a rule for each existing case and that porventura came existing. according to principle, the order did not have gaps. The Judge was obliged to judge all the controversies the one that was called to nullify and rank in the codes only made it on the basis of a pertaining norm to the legal system. It was developed trend of jurists and Juízes of if abiding scrupulously by the great codifications of the time, since the 1804 Frenchman until the 1900 German. The completude was a necessity, a requirement of the legal system. This attitude was called, with reference to the Frenchmen in relation to the Napoleonic codes, of "fetichismo of the law." As Norberto Bobbio teaches, in the modern times the dogma of the completude (order without gaps) walks in the same rhythm that the monopolização of the Right on the part of the State (Onipotente). To admit gaps would be to admit that the state legal system was not complete, meaning the presence of a competing Right, represented for the custom, the nature of the things and the fairness. To keep the monopoly, the Right of the State must serve for all use. In France, the legal school that if was imposing after the codification generally is assigned with the name of "school of exegese", and if opposes to the "scientific school", that it came later. The "school of exegese" did not only exist in France, but also, for example, in Italy and Germany and of certain form it exists until today, however with the problematic one of the gaps placed of critical form. With the new State positivado in the jusnaturalismo of the enciclopedistas, from the French revolution of 1789, the "certainty" took account of the legal scene of the time. With the sprouting of the "school of exegese" (narrowly connected with the dogma of the completude), it was transferred to understand that the "Code" did not have gaps, therefore the judge fit the function to base its decisions on the analogy and the orienting general principles of the code. The law started to be the only unalterable e source of the Right, fitting to the judge, the sight of the problem, to find the norm in the "Code", renegando it tradition of the Common law of the "Ancien Regimen" that placed as formal sources of the Right, to the side of the law, the customs, the sentences and, with has detached, the doctrine, the side of the tradition and the principles of the Natural law. This school - of the Exegese - all dominated legal the thought French of century XIX, truily idolatrando the law....

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