These : monografias, teses, dissertações

This work aims to analyze the theory of the “Enemy Criminal Law” in the light of the conception and methodology of GÜNTHER JAKOBS. It is the most controversial Criminal Policy of current time s, but has been gradually entwining itself with rules, jurisprudence and legislations based on the classic-illuminist model. In order to assess legitimacy of a Criminal Law of such nature, which legal scholars have called “the third pace of Criminal Law”, we initially pointed out some traces of the context of the post-industrial society and outlined the new criminal claims of the modern world, with a clear-cut inten tion to show that the complexity of the contemporary society has been, for a long time, imposing changes on the criminal dogmatics, even prior to the formalization of JAKOBS’ concept. Based on the acknowledged complexity of modern society, we presented NIKLAS LUHMANN’s systems theory, which was JAKOBS’ point of departure for the theoretical construction of his Law of Normality – “The Citizen’s Criminal Law”. By praising the functiona l distinction of (Politi cal, Economic, Legal etc.) systems, LUHMANN advocates that the function of Law would be that of consistently stabilizing standardized expect ations. This would be precisely the primary function of the penalty advocated by JAKOBS’ systemic functionalism. Thus, through the presentation of the systemic functionalism’s new paradigms, it is possible to understand the theory of punishment in the “Citizen’s Criminal Law”, which JAKOBS calls “positive general prevention”. By analyzing the conceptions about the purpose of punishment and once we finally outlined an overview of the Criminal Law of Normality, whose primary function is that of reaffirmation of Law itself in su ch a way as to ensure the configuration of society, we formally present his theory of the “ Enemy Criminal Law ”, with an indication of origin, concept, meaning, ph ilosophical construal, normative distinction between “person” and “ enemy” and, above all, we outlin ed their major features, emphasizing the role of early relief in Cr iminal Law, the use of disproportionate punishments and the relativization of criminal and procedural warranties. We furthermore stressed how the theory aros e in a first plane, as a criticism in response to the discovery of cr iminal legislations and policies that were already making use of such parameters and, in a second plan e, how the criticism turned into something held by JAKOBS as inevitable, reinforced by terrorist attacks perpetrated throughout the world. Moreover, similar precedents or inst itutions have been contemplated, contextualizing old and recent criminal polic ies to cope with ordinary and organized crime, such as those of the movements “ Law & Order ”, “Zero Tolerance ” and the “theory of broken windows”, the author’s Criminal Law th at advocated the level of risk to the detriment of the Criminal Law of fact based on liability, the criminological classification of the perpetrator as “profe ssional”, “customary” and “by tendency”, in addition to the use of safety measures to criminally imputable and dangerous individuals. The criticisms to the German jurist’s conception were presented from a number of standpoints – from non-complianc e with Constitutional Principles to the inconsistency with JAKOBS’ methodological support itself – so that we could eventually face the hard task to review the legitimacy of a “third-pace” Criminal Law in Democratic States, as well as the risks of i gnoring its existence with subtle suggestions of confronting the issue on a short and long-term basis.