Direito penal dos vulneráveis: uma análise crítica da busca de reconhecimento por meio do direito penal

Abstract

This is a theoretical research which aims at studying the peculiar thought related to the expansion of the contemporary criminal laws, which are related to the creation of criminal laws directed towards the protection of minority groups, here called "Criminal Law of the Vulnerable". The idea is to question the use of the Criminal Law as a space for the promotion of equity and the replacement of the vulnerable situation common to minority groups. How the idea of vulnerability is brought about is investigated, together with its connection to the ideas of Human Rights, Critical Criminology and Victimology, as a theoretical assumption which is able to justify the use of the Criminal Law as a way to promote and assert the rights of vulnerable groups. The concept of intersubjective recognition is considered when it comes to the reading of social mobilizations which determines "a run towards the Criminal Law", in which expectations to make the demands for equity by some determined segments and groups are created, besides expectations to generate more recognition or social esteem to the same groups. "The Criminal Law of the Vulnerable" is analyzed in the light of an understanding of the Criminal Law which takes the position of a guarantee, verifying its characteristics and contradictions. The conclusion drawn points to the fact that "The Criminal Law of the Vulnerable" is not capable of producing recognition or replacing inequities, since its structural characteristics point to the opposite: the Criminal Law prevent recognition and reproduce inequities. The choice of the social actors for recruiting the Criminal Law as a way to achieve recognition expresses a reactive view and a punitive pleasure which is incompatible with the defense of Human Rights. When choosing the punitive response, it is in fact reproducing the culture of domination and submission which is intended to replace. Recognition must be sought in other spaces other than that of the Criminal Law. This must aim at protecting the legal interests of all, being committed to respect Human Rights and seeking a minimal intervention, with the maximum of guarantees to the individual.