The incompatibility of the criminal law of the enemy theory with the Brazilian legal system

Abstract

The Criminal Law of the Enemy is a recent theoretical creation of one of the most modern and controversial jurists of the present time. With the occurrence of the terrorist attack on the United States of America in 2001, the conjecture elaborated by Günther Jakobs gained prominence and became widely discussed in the legal environment. In view of this, the present study aims to analyze the Enemy's Criminal Law, investigating the possibility of harmonizing the theory with the constitutional principles applicable to criminal matters. To do so, an exploratory study will be carried out, using the qualitative approach, using the method of bibliographic research. The Democratic State of Law presupposes respect for the rights considered fundamental to human life, which are enshrined in the current constitutional order and guide the edition and application of Brazilian laws, including criminal law. In this sense, based on an analytical approach to the Criminal Law of the Enemy, it was observed that such criminal policy has as a presupposition the differential treatment of offenders who, in the case of committing more serious crimes and verifying perennial delinquent tendency, will be considered enemies of the State and, therefore, the dismissal of guarantees which, in the light of the constitutional principles of the CRFB/1988, are inviolable. By imposing a dichotomous treatment on the courts because of their social behavior, applying a disproportionate sanction to the fact committed and relating to future fact, the Jakobsian conjecture attacks against the essential primacy of the Democratic State of Law, defies the constitutional order itself and denies observance of the guarantees humanitarian measures that could not be waived under Brazilian law, and it was concluded that it was not compatible with CRFB/1988.