O direito penal do inimigo e suas implicações em um estudo democrático de direito.

Abstract

The foundation lines of a Democratic State himself reflect in the dynamic profile of citizenship of the respective juridical planning; this foundation has even more value when it comes to matters of criminal nature. This work deals with the incompatibility of the application of the enemy's criminal law of Günther Jakobs in a Democratic State as the Brazilian State. This theory advocates greater repressive treatment by the criminal law to certain individuals that should be considered as enemies by not demonstrate cognitive security that will behave according to the law. In turn, the democratic state preaches an ideal of egalitarian justice grounded in this perspective in a criminal law that acts only in cases where this is necessary to protect legally protected property. At this point it is appropriate to ask, it would be possible to apply informed standards in criminal theory of the enemy in the ambit of a Democratic State of law? As a hypothesis, it has himself that yes, although there is no legal compatibility in the legal-political character of the issues, this procedure himself checks from operational aspects of the Brazilian legal system itself. Thus, this work proposes, as a general goal, to review in detail the theory of criminal law of the enemy, in the light of the Brazilian criminal law in order to demonstrate that the theory of criminal law of the enemy is already being applied in the patriot legal order, even implicitly. In order to achieve this goal employs the method of hypothetical deductive approach; and the method of functionalist procedure; finally apply as research techniques bibliographic and indirect documentation. With the in-depth study of the topic, it is concluded that the theory of criminal law of the enemy, officially considered, presents himself incompatible with the democratic rule of Brazilian law and their trainers principles, and that Jakobs proposes a static containment tactic of the criminal law the enemy that under the dynamic point of view, it is not feasible; may lead the rule of law to become an Absolute State.