THE (IN)COMPATIBILITY OF ENEMY CRIMINAL LAW WITH THE BRAZILIAN LEGAL SYSTEM: AN ANALYSIS OF GÜNTHER JAKOBS’ THEORY

Abstract

This article analyzes the theory of the Enemy Criminal Law, developed by the German jurist Günther Jakobs, with the aim of examining its (in)compatibility with the Brazilian legal system. The research was conducted through a qualitative narrative literature review, based on the analysis of doctrinal works related to the subject, the 1988 Federal Constitution, and Brazilian infraconstitutional criminal legislation. The results demonstrate that the three structural pillars of Jakobs’s theory contradict the constitutional principles of human dignity, equality before the law, legality, presumption of innocence, due process of law, and proportionality. The examination of the Criminal Organizations Law (Law No. 12,850/2013), the Anti-Terrorism Law (Law No. 13,260/2016), and the Differentiated Disciplinary Regime, following the amendments introduced by the Anti-Crime Package (Law No. 13,964/2019), reveals the presence of characteristics of this model within the Brazilian criminal legal framework. Finally, it is concluded that the Enemy Criminal Law constitutes an instrument of controversial effectiveness in addressing the problem of endemic criminality with a high degree of dangerousness in Brazil, insofar as it disregards the possible structural roots of this phenomenon, including those arising from omissions by the State itself, and imposes exceptional criminal regimes on individuals at the cost of breaking with constitutional principles that underpin the Democratic Rule of Law and Criminal Law itself.