SOUSA, S. L.; http://lattes.cnpq.br/4152488360070077; SOUSA, Silas Lacerda de.
Résumé:
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.