Por uma política legislativa penal brasileira : fundamentos e limites jurídicos e político-democráticos para o ato de criação de Leis penais

Abstract

This doctoral thesis focuses on the Brazilian penal legislation hypertrophy and intends to discuss its possible causes. It is argued that the current state of affairs in Brazilian criminal policy is conditioned by three circumstances: the lack of interest of the Criminal Sciences in the primary process of criminalization, the atrophic nature of the dialogues established between the Criminal Sciences and the theories of legislation and public policies and, finally, the precariousness of the normative instruments that regulate the Brazilian legislative process. To better comprehend the causes of the aforementioned hypertrophy, a review of the bibliography related to the theme and a documentary analysis are promoted in order to ascertain, in the light of the model of penal rationality proposed by Díez Ripollés, the quality of the justifications presented by the members of the Congress to create new crimes. The thesis covers the period between the 48th and 55th Legislatures of the National Congress. The first chapter explores the possibilities toward an approximation (on a conceptual and programmatic basis) between the fields of criminal policy, public policies, and theories of legislation, whose convergence would give rise to what is to be could call a penal legislative policy. The second chapter thematizes some core issues about the legal (and political) legitimacy of the act of producing criminal norms through dialogues with authors from the Brazil-Spain axis. Furthermore, reasons are offered to highlight the heuristic gains implied in the assumption that the political-criminal knowledge represents a knowledge guided and crossed by discourses and questions of a political nature. In this sense, an effort was made to show that the theory of radical democracy offers new and better criteria to discuss the (political) legitimation of criminalization choices in democratic regimes. The third chapter analyses the limits and possibilities of the norms and institutions that characterize and drive the Brazilian lawmaking process. At this point, the goal is to defend some specific reforms in the internal regulations of the Chamber of Deputies and the Federal Senate. In conclusion, synthetic propositions are offered to support the thesis.