THE CRIMINAL LAW OF THE ENEMY: SOLUTION OR RETROCESS IN FACE OF THE FEDERAL CONSTITUCION OF 1988

Abstract

The Theory of Criminal Law of the Enemy defended by Günther Jakobs discusses the separation between citizen and "enemy" of the State. That considered enemy will lose the status of subject of right, thus, must be fought and segregated. Therefore, in view of the Federal Constitution of 1988, such a theory would be unconstitutional, since its content contradicts the constitutional norms. The present work has as scope to analyze this theory, aiming at the main points of compatibility and conflicting with the current Brazilian legal system. It is a research of objective nature and basic nature, produced and based on bibliographic studies. Emphasizing the legal sources used, such as the 1988 constitution, in order to base the assertions. Article 5 of the current Constitution explains fundamental rights and guarantees. In view of this article, the theory of the criminal law of the enemy would be in line with the theses listed in it, for in this, those said as enemies of the State would lose the character of persons of law, since they would be in the aforementioned condition, hurting that part that talks about the equality of all in the face of the law. Moreover, such a theory contradicts the principle of the dignity of the human person, which is based on Article 5. Therefore, we observe that in adopting such a theory, we would be faced with a setback, since it would give the State autonomy to consider enemies those individuals who committed the most serious criminal offenses, and in that assumption, such a theory would violate fundamental principles and rights, since, differently these people, disrespecting the Federal Constitution of 1988, considered as "citizen".