Critique of criminal law

Image: Marina Gusmão


The criminal law of a country gives us a glimpse of the evolving conditions of its society

It is popularly said that the criminal law of a country gives us a glimpse of the evolving conditions of its society. When we scrutinize its order, we have the possibility of understanding how the powers that be have structurally deal with the differences and diversity of its social contingent. In Brazil, life, a fundamental asset as defined in our Constitution of 1988, and the dignity that must support such a proposition, are institutionally vilified day after day by the positive and enforced penal system. The function of the penalty, since its immemorial advent, is primarily to protect goods, not lives. We can even verify how much this proposition was asserted with the advent of type encodings that function, in fact, as a menu of options for social control.

Penal policy brings in its framework the premise of guiding society, through sanctions, in order to make human coexistence peaceful or, at least, less bellicose, thus being part of the social contract that we become signatories, obligatorily, at birth. . However, some questions arise when we begin to understand how this appeasement is thought out and applied. Does he impose himself on everyone in the same way? Are the goods protected and the sanctions imposed coherently correlated?

When we look into this issue, we see a complete inversion of values ​​(non-monetary, obviously). The principles limiting the State's power to punish, which should confer social security, such as equality or proportionality, end up becoming complete discursive fallacies. Disproportionality is grounded and, simultaneously, one of the drivers of inequality that crosses, tearing the social fabric to shreds.

We must maintain our critical capacity so that we can see the flaws of this autopoietic system, where the ability to reproduce inequality seems to be fed by a “punitivism” that does not let difference, but inequality, be the metric of the diversity of our society. As long as there is no real equality in the conditions of reproduction of life, there is no need to talk about isonomy, or a term that is worth it, as a principle for the application of a right shaped and exercised to punish behavior, or rather, the undesirable ones and not the – now in fact – unacceptable behaviors.

Although in the current evolutionary condition of our society, permeated by the ideal of progress, order is the ultimate goal of law, this must be seen as a safeguard of the to be, rather than as a guarantor of the mere right to to have. The task that is imposed on those who fight for a minimally dignified sociability, within a system that strives for subjection to ignobility, is not to let themselves be prostrated before the barriers erected to contain the incorrigible, undesirable. It is through constant criticism and propositional action that we will force these evolutionary obstacles in the way of a just society, because it is diverse, not unequal.

* Silvane Ortiz is a law student at the Federal University of Rio Grande do Sul (UFRGS).


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