Nova hermenêutica e Direito Penal brasileiro: os perigos de um "pós-positivismo" à míngua da legalidade penal e a possível alternativa do constitucionalismo garantista

Abstract

This monograph addresses the tense relationship between the post-positivist paradigm experienced by nineteenth-century law and criminal law understood as a system of defense of fundamental rights against the State's discretion, focusing on the Brazilian experience. For the purposes of the analysis proposed here, a historical-hermeneutic lens linked to Lenio Luiz Streck's critique is operated, through which it becomes possible to map and understand the anti-positivist (or post-positivist) movements that developed from the second mid-twentieth century, evidencing, in addition to the precious achievements achieved by them, such as overcoming the paleojuspositivist hermetic formalism and the constitutionalist phenomenon itself, the great dangers that are innate to them, such as the tendency of (re)moralization of Law and expansion of spaces for judicial discretion. In this line, the present work intends to demonstrate the responsibility of these factors for the distortion of the very instrumental conception of Criminal Law, which starts to recognize a function of "concretization of values", as well as for the violation of its most expensive principles, namely: the strict legality and the principle of secularization. With this in mind, a case study will be carried out on the decision of the Federal Supreme Court that recognized the imprescriptibility of the crime of racial injury from its equivalence to the crime of racism, emphasizing the function of the legal-criminal dogmatic and its principles structures for safeguarding the basic rights of citizens against the eventuality of the desires of the majority, which are supported, many times, by the decisions of the magistrates. Finally, the theoretical alternative proposed by Luigi Ferrali, defender of a reinforced positivism, will be presented, in view of the risks presented by the post-positivist or neoconstitutionalist paradigm (also called by the author “principialist”): it is guaranteeist constitutionalism.