Revolution, violence and law: Hans Kelsen and the emergence of the Brazilian Federal Constitution of 1934

Abstract

This article intends to discuss the relations between law, violence and revolution from the premise that the characteristic datum of juridical experience is its effectiveness, namely, the fact of imposing itself or not, wherewith the law happens to be understood as a monopolistic structure of violence. Therefore, a reading of Hans Kelsen's Pure Theory of Law is made under the interpretative key of the theories of violence. So that to confirm such understanding, frankly in the minority of kelsenians studies, the Legal Opinion which Kelsen offered to the Brazilian National Constituent Assembly in 1933, in the revolution of 1930's context that brought Getúlio Vargas to power, is analyzed. Besides presenting that rare document in its entirety (in its original German version and translated to Spanish), the present work analyzes it in detail, with the purpose to demonstrate the central thesis which, it seems to me, characterizes the kelsenian juridical theory, whereby it is impossible to dissociate law and violence, what becomes especially clear in revolutionary moments.