Fundamentos do direito penal militar : um olhar para além da hierarquia e disciplina

Abstract

This research aims to discuss the Brazilian Military Criminal Law based in the theoretical legitimation attempts of the Criminal Law. The essential question is about the legitimacy of a military criminal law based on hierarchy and discipline. From the original question, we have brought to light the contemporary theories that attempt to justify the criminal law, namely the theories related to criminal functionalism (moderate - Claus Roxin, and radical - Günther Jakobs ) and the onto-anthropological theory of José Francisco de Faria Costa. In the Functionalist theories the object is in the consequences, there is a projection into the future. In the onto-anthropological theory, the man is placed as gravitational center of the building on the right. It assumes the idea that the law isn’t a technique, the law sets a manifestation of our deeper way of being with others, conforms to both limit and foundation of "I" with the "other". It’s analysed also about the hierarchy and discipline as fundamental precepts of the Armed Forces.In the second part, it penetrates to the military criminal offense, attempting to identify their material contours. It is possible to assert a lack of material density in the current definition of military Illicit in the Brazilian criminal law, which leads to serious problems of legitimacy of the criminal law. In the investigation it was possible to sketch at least two criteria that could serve as a starting point to the military justice system: (a) the military nature of the legal interest; (b) the quality of the author who infringes their military duties as a member of Armed Force.