A busca pela legitimidade da jurisdição penal frente às exigências do Estado democrático (e social) de direito: a necessidade de se alcançar a resposta constitucionalmente adequada (ao acusado e à sociedade) a partir de uma releitura do princípio acusatório

Abstract

In a (social) democratic State, especially in developing countries like Brazil, the Judiciary has occupied a prominent role in society. It is – several times – expected to act facing the inertia of the other powers (executive and legislative), regarding the effectiveness of social policies, and it is also expected to solve conflicts whose interests changed from a purely individual to a collective ground. Likewise, the relation of the magistrate with the law has changed, to the extent that the new constitutional texts require a federal filtering, their material content being analyzed. There is a crisis in Criminal Law, because of its expansion. Its goals have been changed for a field truly foreign to its original illuminist/bourgeois/individualistic nature. In other words, nowadays, their batteries are aimed at combating a kind of crime that aims at harming the collective interests and, in most cases, that is developing in a more globalized and a faster fashion. Apart from that, other factors are playing their role (as the media and the criminal blank laws), enabling and encouraging a greater (and more dangerous) discretion concering the magistrate when he or she acts. To sum up, Criminal Law is in crisis, especially if we take into account its various legislative inflows, anticipating its protective barriers, giving it an administrative nature. Nevertheless, in the day to day forensics and academic practice in Brazil, a “state of the art” generated by legal positivism is practiced, which generates a “war of the meanings where all interpreters are against all interpreters”, allowing many decisions to be dissociated from the Federal Constitution, and many arbitrary and customary decicionisms. Finally, judicial decisions have an important emphasis on the court’s current history, because the legitimacy of the judiciary shall be assessed case by case by the parties and society, through their justificative speeches. It is therefore within this (complicated) scenario that this thesis is developed, in order to reveal how court decisions should be implemented to be legitimate and valid under the constitutional perspective, and to overcome the crisis mentioned early. To this end, the phenomenological method and philosophical hermeneutics are called, expropriating the theory of adequate response to the Federal Constitution, advocating in favor of a judicial decision based on a (re) reading of the accusatory principle.