Ainda vive a teoria do bem jurídico? Uma contribuição ao debate sobre a teoria do bem jurídico e os limites materiais do poder estatal de incriminar

Abstract

The question of whether the theory of legal good is still alive is a starting point which reflects the period of uncertainty the development of the theory of legal good in its political and criminal sense currently undergoes. The undisputable rise in the number of jurists who are willing to forego the idea that a criminal norm must protect legal goods, or even the understanding that the state power to incriminate may be questioned under theoretical barriers have patently indicated that the scrutiny of positive law by rational judgments is slowing falling into disuse. The decadence of the political and criminal thought on the legal good becomes evident by the sheer quantity of exceptions acknowledged even by its supporters, by the frequent fair and unfair criticism expressed by its opponents, and also by the disregard lawmakers and courts have been showing for the conclusions reached by the academic debate in the last decades. If, one the one hand, it s not fair to state that every opponent of the theory of legal good is also opposed to any objections to positive law, since some propose to substitute the theory of legal good for other limiting criteria to the state power to incriminate, it is important, on the other hand, to acknowledge that the position maintained by those in favour of expanding the field of power of lawmakers is apparently gathering more supporters by means of, for instance, reasons evoking the protection of the validity of the norm, social damage, the acknowledgment of good based on the culture or a relativism founded on the principles of proportionality and of democracy. But the diversity and the sophistication of these explanations can t be considered a sufficient reason to ignore the historical lesson that it is dangerous to deny the validity of questioning positive law and of setting limits to the use of criminal law on the mere basis that it does not stem from state powers, but from rational conclusions originated within a scientific debate. For that reason, this study still maintains that the power of the legislator in forbidding criminally specified conducts must lose strength when countered by arguments that clearly demonstrate the instances when the criminal intervention on a specific hypothesis reaches into the field of arbitrariness. These arguments, according to the proposition defended in this study, revolve around the idea of liberty and of the valuation of some of its fundamental aspects, thus conforming to the fact that, in ultimate extent, it is nothing other than freedom that is at stake in criminal law.