Crime as a legal phenomenon and as a social fact

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By SILVANE ORTIZ*

Techniques of containment and social control to maintain structuring inequalities of the capitalist system

The conformation between the crime, its assumptions and the dosage of the penalty is something that occupies, in addition to legal action, the thoughts of all those who dedicate themselves to the scrutiny of society. In jus-philosophical terms, historically, several difficulties have been imposed – and still are imposed – to define what would be the conceptualization of crime.

In the area of ​​law, the interpretation of the correlations between causality and finalistic action, give rise to the two theoretical currents that succeeded each other as the maximum readings on the theory of crime in the Brazilian legal-criminal doctrine. However, this is riddled with vagueness, because when we understand the legal phenomenon as something that imposes itself, even conforming how social relations occur, a sociological crossing over this understanding is urgent and necessary. Since crime is a fact intertwined – like the legal system as a whole – with the materiality of social relations, its theorization, based on science, tends to undergo alterations related to the evolution of the interpretation of contingencies that permeate society. It is not by chance that there is a constant mutability between the theories that substantiate such a concept, although they are rarely, in fact, supported by the reality of social forms.

Sociology, as a human science that combines action and practice, has great contributions to offer to legal practice. Since the sociology of law, specifically, is a matter of confluence of scientific knowledge about society, under the legal prism, the propaedeutic role of such discipline in the course of academic training, enables the future jurist to develop the ability to see the phenomenon of law with the breadth and materiality it encompasses. However, tendentially, this – like all knowledge that fosters the development of critical thinking – is relegated to an inferior position in the course of legal education, as well as in its daily practice. And for the theory of crime this is no different. So that crime, as a human action -crossed by the materiality that surrounds and conforms it - can be seen with the importance that its ordering and engendering scope of a legal culture, beyond the norm, factual reality must be combined with theoretical abstraction. The plurality of the human sciences cannot be disregarded for the conception of a theory that will inevitably focus on social relations. The scrutiny of human actions is always an intrinsically dialectical activity, simultaneously abstract and material; interpreting the motivations subjectively internalized in the individual, together with the external determinations that objectively act on him. In this way, the imbrication of the diversity of human sciences in the construction of legal knowledge, which lends itself to responsible action, is something unavoidable.

Focusing on the method that intends to offer criminal law epistemological bases, the analytical concept of crime[I] and its ways of approaching actions considered criminal – subject to sanctions – we have some theorizations that mostly defined the way of understanding and applying the legality. A causal theory it works with crime as a fact related to the will of the agent, strictly linked to the cause that gives rise to the result. For this classic theory, the assessment of culpability would only suffice with a “cold” interpretation of the conduct that brings external changes to the individual. Without comparing the psychosocial aspects that challenge the individual, this theory ends up shifting deceit and guilt to the sphere of culpability. Summarizing, therefore, a theoretical form misaligned with modern interpretations of the to be as a bearer of idiosyncrasies and subject to determinations, which must be taken by a myriad of underlying complexities. Still dependent on a reductionist worldview – highly biased by concepts arising from the natural sciences as gauges of an intended scientific neutrality (naturalistic positivism), the causalist theory tends to subsume the scope of guilt to the action itself, regardless of its factual result and its final consequences.

In turn, the current that centers the theory of crime on the dictates of its purpose shifts the interpretation of the action to the final event (purpose). To the finalistic theory, conceived in the epistemic turn of normative positivism (neokantianism) for the ontological bias (legal theorization in the nature of things) as a jus-sociological theoretical framework, which starts to guide culpability is the inherence between will and conduct (intentionality), thus leading the deceit and guilt to the scope of the criminal type. Even so, elements external to the individual interfere little with its conceptualization, based on the objectivity of conduct. Even if there is greater attention to subjectivity, this remains attached to the interpretation of the cause, not reaching determinations external to the individual for the understanding and measurement of culpability.

Even though such theories are subdivided into interpretations focused on the partition of their analytical conception, these divisions miss the heart of the matter, always becoming entangled in their own discussions. Its entire conceptualization is attached to the theorization of action, not investing in a critical deepening of the social forms that weigh on it. Posting the legal practice, thus, constantly with its back to the reality that presents itself in society. Law, as a whole, is usually a victim and executioner of this practice of self-absorption about its normativity. As codifications are the target and starting point of their theoretical and practical approaches, they reduce legality to the establishment of preconceived criteria, where the scope of punishment is subordinated to the fulfillment of certain objective situations, with little attachment to the material subjectivity that configures the dialectic between overdetermination[ii] and action (external-internal-external) of the subjects.

Without a profound critique of the economic and social determination that crosses the materiality of social forms, directly affecting the criminal conduct, as well as the form and scope of blame, we will only be speculating on the symptoms and never dealing with the disease, the true cause that gives rise to the vast majority of situations of assumption of actions subject to penalty. Capitalist normativity immediately draws a cut in society that segregates by race, class, gender, defining the very possibilities of access to basic conditions for the reproduction, minimally dignified, of life under the turpitude of this system. Focusing the teaching and practice of law, only and solely, on ordering and on the “punitivism” arising from its non-compliance, will this be supplanting the scientific capacity of legal action and ultimately conforming to a low technique of containment and social control to the maintenance of structuring inequalities of the system now in place.

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

 

References


ALEXANDER Michelle. The New Segregation: Racism and Mass Incarceration. Sao Paulo: Boitempo, 2018.

BARATTA, Alessandro. Critical Criminology and Critical Criminal Law. Introduction to the Sociology of Criminal Law. Rio de Janeiro: Revan, 2002.

DAVIS, Angela. Women, Race and Class. Sao Paulo: Boitempo, 2016.

FOUCAULT, Michael. Discipline and Punish: Birth of Prison. Petropolis, Voices, 2014.

MASCARO, Alysson L. State and Political Form. Sao Paulo: Boitempo, 2013.

MASCARO, Alysson L. Philosophy of law. Sao Paulo: Atlas, 2021.

MASCARO, Alysson L. Sociology of Law. Sao Paulo: Atlas, 2022.

PACHUKANIS, Evguiéni B. Theory of Law and Marxism. Sao Paulo: Boitempo, 2017.

QUEIROZ, Paul. Criminal Law Course, Vol. 1 – General Part. Ed. 4 – Rio de Janeiro: Lumen Juris, 2008.

ROXIN, Claus. Criminal Law Studies. Rio de Janeiro: Renew, 2006

SILVA, Ângelo R. Ilha da. Criminal Law Course: general part. 2nd edition – São Paulo: Editora D'Plácido, 2019.

 

Notes


[I]I also note that the analytical concept is a development of the legal concept (only what the law defines as such under threat of a penalty is a crime), which, in turn, is a political concept, since it requires a decision of power that determines what is and is not a criminal offence. Consequently, so are its integral elements: typicality, unlawfulness and culpability. QUEIROZ, Paul.

[ii] Economism always automatically related the part and the whole. Althusser, moving away from economism, dealing with the relationship between infrastructure and superstructure, gives the name of overdetermination to the possibility of a specific arrangement between the various determinations of the social whole. Society is always ultimately determined by the economic level, but the conjunction of different determinations on the same object is what generates overdetermination. MASCARO, Alysson. Philosophy of law. Pag. 499.

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