A crise da culpabilidade na dogmática jurídico penal: Análise da ética da alteridade como referencial material para a culpabilidade

Abstract

Moving away from the traditional discussion around the crisis of guilt, which focuses on determinism and free will, this study points to a crisis of legitimacy that stems from the selectivity of the penal system - a gap that motivated the research - resulting in the reduction of the institute to a mere instrument of power aimed at maintaining the interests of a dominant class, generating an increase in hyper-incarceration and structural and institutional violence. Thus, we investigated the hypothesis that the ethics of alterity, inherent in the thought of Emmanuel Lévinas, can serve as a material reference for guilt, as an alternative to contain the irrationality of punitive power. To this end, the work first sought a historical contextualization that exposes the expiatory, segregating and selective bases of the institute. Subsequently, taking Brazil as a spatial framework, there was an analysis of the functions of penal dogmatics considering the implications arising from neoliberal rationality, from a critical conception of criminology, to then present a dogmatic proposal where alterity is a plausible ethical foundation for guilt and, afterwards, to weave a practical analysis of this new structure in the application of the elements that make up the institute of guilt.