O conceito material de crime e a limitação do poder estatal de criminalizar condutas: uma análise sob o prisma da filosofia retórica

Abstract

Amongst the most relevant and polemic problems of the criminal theories is placed that of the formulation of a material concept of crime which is capable of exercising a critical-restrictive function regarding the State's power to criminalize actions. Despite the more than two centuries of development, the issue remains open to discussions and controversies. The thinkers and legal scientists, anguished with the empirical observation of a whole history of abuse of the criminal law production by the State, searched for institutes capable of imposing filters of legitimacy to the criminalizing laws, and it led to a large variety of theories about the "legal goods" and to the harm principle. Because of the great boldness of these theoretical constructions, it is plainly visible the failure of the project to elaborate the most perfect and definitive concepts meant to restrict, by their own force, the criminal laws which encroach unnecessarily or arbitrarily the individual liberties. In this research, we present many of the theoretical contributions about "legal goods" and the harm principle, highlighting points of advantages and disadvantages, and then suggest a set of measures which, working with synergy, cooperate to the obtainment of a system fit to rationalize the criminal laws. Amongst them, there is the development of some liberal criminal-political principles and the approximation between dogmatic, criminal policy and criminology. The work is finished with the suggestion of a material concept of crime which, side by side with the rationalization measures, can contribute to the restriction of the State's powers to criminalize conducts: crime is the socially invalourous behavior which is capable of causing damage to the person or of compromising the environmental conditions required to the accomplishment of their rights. The methodological and philosophical premises are established from rhetorical grounds, whose central characteristics (historicism, skepticism, humanism and the acknowledgement of the role of the language on constructing reality) make themselves visible all over the text.