Historical Views on Environment and Environmental Law in Brazil

By Daibert, Arlindo | The George Washington International Law Review, May 30, 2008 | Go to article overview

Historical Views on Environment and Environmental Law in Brazil


Daibert, Arlindo, The George Washington International Law Review


METHODOLOGICAL NOTE

The key processes that produced Brazil today lie in the Brazilian precolonial1 and colonial period.2 Those times were responsible for laying the foundations of nationhood and creating a new society, something different, not only for the native people living in Brazil, but also for the Portuguese colonizers.3 A new "social organization defined in terms of specific relationships; and ... a collective and particular mental attitude" emerged.4

We "need to go so far back [to get] facts which are indispensable for interpreting and understanding die [current Brazilian] environment" because those facts represent characteristics still present and observable in all elements of the contemporary Brazilian reality.5 This reality is one still under continuous, "open and active change, not yet setded along any clearly defined lines, an organism that has not yet 'taken shape.'"6 Hence, a true historical description of the facts that have influenced the development of Brazilian society, with a particular focus on the legal and the environmental aspects, must begin with the inception of that cultural stew.

A. Romans, Germans, Arabics, and the Portuguese

From the standpoint of the European conqueror, the Portuguese "discovered" Brazil, and despite the importance of the many cultures that contributed to the civilizing process of the country, the Portuguese exerted the most marked influence in every sense.7 The history of Brazil begins in Portugal.8 Brazil was a Portuguese territory longer than it has been an independent nation - Brazil was a Portuguese colony for 322 years and became independent only 187 years ago.9

Historically, Portugal corresponded to what later would become the Roman province of Lusitania, with little archeological information available on the social organization, political institutions, or the law of the Lusitanian tribes that occupied the Atlantic sector of the Iberian Peninsula in pre-Roman times.10 It is asserted, with great uncertainty however, that the chief source of law during such times was custom, as inherited by ancestral, oral tradition from the previous generations (mos majorum) .n It is also presumed that customs varied from one individual tribe to another, with the family patriarch or the tribes' chiefs holding the authority to enforce the law.12

The Roman conquest of Lusitania began during the third century and the last native resistance was suppressed in 60 BC.13 Under Roman rule, the law applied to the Lusitanian people came from a diverse array of sources, such as the primitive norms of indigenous law, which were tolerated in each conquered city as long as Roman law was applied to Roman citizens and Roman interests.14 That explains another source of law in place, that is, the jus gentium, a concept whose meaning has changed over time, but that has always indicated the applicable law for matters involving conflict between Roman citizens or Roman interests and nonRoman citizens or non-Roman interests.15

There were also Roman statutes specially enacted for the Iberian provinces, typically aiming to regulate Rome's interests in those territories on taxes, economic activities, and the like.16

Finally, there was the Roman law itself, which was too sophisticated and subde a system to be plainly enforced in the rude populations of the provinces.17 It was necessary to interpret the Roman system according to provincial understandings and to the extent enforcement was possible, sometimes making less strict the stringent provisions of the law, other times bending their meaning to accommodate local resistance toward them.18

In AD 467, Lusitania was conquered by the Visigoths, a Germanic, barbaric19 people that were at one time allies of the Roman Empire, which itself would soon see the dismemberment of its western reaches.20

It must be remembered that Christianity was no longer illegal by AD 313, with Constantine.21 In fact, as of then and in spite of a short period of turbulence when Julianus, the last pagan emperor, briefly ruled Rome, the Christian Church would hold a privileged position in the Roman Empire, though the Church turned out to be "as intolerant of paganism as paganism had been of Christianity" before. …

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