DIREITO PENAL DO INIMIGO E SEU CORRELACIONAMENTO NA LEGISLAÇÃO PENAL BRASILEIRA

Abstract

This booklet aims to analyze the Theory of Criminal Law of Enemy of Günther Jakobs and its possible application in the Brazilian legal-penal system, that is, if there is a correlation of legal nature between the theory in question and the extravagant criminal legislation. It is analyzed, initially, in the first chapter of this work the link between Niklas Luhmann's Theory on social systems and systemic-functionalism, deriving from it, the Penal Law of the Enemy and its essential core, the concept of enemy, both the usual doctrinaire definition as a possible conceptualization brought by the Author himself and, of course, his opposition to the concept of citizen, setting parameters and characteristics. It will also be observed the jus philosophical- sociological basis of the theory in question, followed by a brief investigation of the Theory of Criminal Law of the Enemy in its material and procedural aspects, ending with considerations about the legitimacy of the theory in a Democratic State of Law. In the second chapter, a detailed description and analysis of the Criminal Identification Law, the Differential Disciplinary Regime, the Criminal Organization Law, their historical processes of formation, media and social influences, their projects, characteristics and objectives, the general aspects that resemble the symbolism and penal punitivism, resulting, from this, in what Manuel Cancio Meliá points out as the genesis of the Penal Law of the Enemy, being this legal architecture made in accordance with the speeds of criminal law, which Silva Sánchez calls Expansion of Criminal Law. In the Third Chapter, an analysis of the correspondence between the legal nature of the Enemy Criminal Law Theory and the respective normative natures of the Laws exposed in the Second Chapter will be made, observing, gradually, if there is a normative overlapping of the concept of enemy of the Theory to the criminal types, intrinsic object of the study, besides other normative elements in their material and procedural aspects, if there is relativization of fundamental procedural and criminal rights and guarantees, and finally, the jurisprudential behavior of the Brazilian courts about the Enemy Criminal Law.