Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us

Carlos Augusto Machado de Brito

doi:doi:10.11648/j.ijls.20230604.14

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Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us

Carlos Augusto Machado de Brito

Published in International Journal of Law and Society (Volume 6, Issue 4)

Received: 21 September 2023 Accepted: 10 November 2023 Published: 6 December 2023

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Abstract

The present article aims at analyzing what is understood by expansion of the criminal law. This expression was coined by the Spanish penalist Jesus Maria Sanches. We will reflect on the consequences brought by the post-industrial society to the field of criminal law with its evolutions and influences on the punitive system according to its applicability having as a measure the restrictive penalty of law and the flexibility of the citizen's guarantees, whether for more or less, depending on the seriousness of the criminal act committed. In this context we will examine what characterizes the expansion movements and its consequent punitivism that came with the birth of the enemy criminal law theory which was developed by Günther Jakobs. A brief biography of this author will be exposed then we will pass on to the analysis of his penal functionalism in which the enemy criminal law is inserted. We will identify who the enemy is in relation to what the citizen is; how the enemy expresses himself within the criminal law and its reflections in the criminal legislative production, especially the Brazilian one. In order to develop this work we applied the deductive scientific method together with the hermeneutical method and as such it can be classified as an explanatory research because it is a theoretical approach of the proposed theme.

Published in	International Journal of Law and Society (Volume 6, Issue 4)
DOI	10.11648/j.ijls.20230604.14
Page(s)	274-282
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2023. Published by Science Publishing Group

Keywords

Expansion, Law, Criminal, Functionalism, Enemy

References

[1]	Biography Günther Jakobs. In: WIKIPEDIA. Flórida: Wikipedia Fundation, 2021. https://pt.wikipedia.org/wiki/G%C3%BCnther_Jakobs.
[2]	BRASIL. Code of Criminal Procedure. http://www.planalto.gov.br/ccivil_03/decreto-lei/del3689compilado.htm.
[3]	CALLEGARI, André Luís; Raul Marques Linhares. Criminal Law and Functionalism: A New Scenario of the General Theory of Crime. Porto Alegre: Livraria do Advogado, 2017.
[4]	CÂMARA DOS DEPUTADOS. Projeto de Lei 5365/2020. https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2265995.
[5]	CAVALCANTI FILHO, João Trindade. Hate speech in German, American and Brazilian jurisprudence. How Political Ideology Influences the Boundaries of Expression. São Paulo: Saraiva Educação, 2018.
[6]	D´AVILA, Fábio Roberto. Offensiveness in criminal law. Writings on the Theory of Crime as an Offense to Legal Goods. Porto Alegre: Livraria do Advogado, 2009.
[7]	GRECO, Rogério. Criminal law of balance. A minimalist view of Criminal Law: 9º ed. Niterói: Impetus, 2016.
[8]	HABIB, Gabriel. The Criminal Law of the Enemy and the Law of Heinous Crimes. Niterói: Impetus, 2016.
[9]	JAKOBS, Günther. Fundamentals of criminal law. São Paulo: Revista dos Tribunais, 2003.
[10]	JAKOBS, Günther. Society, norm and person. Functional Criminal Law Theory. Barueri: Manole, 2003.
[11]	JAKOBS, Günther. Protection of legal assets? On the legitimacy of criminal law 2ª ed. rev. Porto Alegre: CDS Editora, 2021.
[12]	JAKOBS, Günther; MELIÁ, Manuel Cancio. Criminal Law of the Enemy: Notions and Criticisms. Porto Alegre: Livraria do Advogado, 2005.
[13]	LLÁCER, Toni. Nietzsche, The Superman and the Will to Power. São Paulo: Salvat, 2015.
[14]	LUHMANN, Niklas Introduction to Systems Theory: 2ª ed. Petrópolis: Vozes, 2010.
[15]	ROXIN, Claus. The protection of legal assets as a function of Criminal Law. 2ª ed. Porto Alegre: Livraria do Advogado, 2018.
[16]	SÁNCHES, Jesús-Maria Silva. The expansion of criminal law. Aspects of Criminal Policy in Post-Industrial Societies: 2ª ed. Madrid: Civitas, 2001.
[17]	TAVARES, Juarez. Theory of Criminal Injustice: 4ª ed. São Paulo: Tirant lo Blanch, 2019.

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Augusto Machado de Brito, C. (2023). Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. International Journal of Law and Society, 6(4), 274-282. https://doi.org/10.11648/j.ijls.20230604.14

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Augusto Machado de Brito, C. Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. Int. J. Law Soc. 2023, 6(4), 274-282. doi: 10.11648/j.ijls.20230604.14

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Augusto Machado de Brito C. Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. Int J Law Soc. 2023;6(4):274-282. doi: 10.11648/j.ijls.20230604.14

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@article{10.11648/j.ijls.20230604.14,
  author = {Carlos Augusto Machado de Brito},
  title = {Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us},
  journal = {International Journal of Law and Society},
  volume = {6},
  number = {4},
  pages = {274-282},
  doi = {10.11648/j.ijls.20230604.14},
  url = {https://doi.org/10.11648/j.ijls.20230604.14},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20230604.14},
  abstract = {The present article aims at analyzing what is understood by expansion of the criminal law. This expression was coined by the Spanish penalist Jesus Maria Sanches. We will reflect on the consequences brought by the post-industrial society to the field of criminal law with its evolutions and influences on the punitive system according to its applicability having as a measure the restrictive penalty of law and the flexibility of the citizen's guarantees, whether for more or less, depending on the seriousness of the criminal act committed. In this context we will examine what characterizes the expansion movements and its consequent punitivism that came with the birth of the enemy criminal law theory which was developed by Günther Jakobs. A brief biography of this author will be exposed then we will pass on to the analysis of his penal functionalism in which the enemy criminal law is inserted. We will identify who the enemy is in relation to what the citizen is; how the enemy expresses himself within the criminal law and its reflections in the criminal legislative production, especially the Brazilian one. In order to develop this work we applied the deductive scientific method together with the hermeneutical method and as such it can be classified as an explanatory research because it is a theoretical approach of the proposed theme.
},
 year = {2023}
}

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TY  - JOUR
T1  - Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us
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Y1  - 2023/12/06
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N1  - https://doi.org/10.11648/j.ijls.20230604.14
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AB  - The present article aims at analyzing what is understood by expansion of the criminal law. This expression was coined by the Spanish penalist Jesus Maria Sanches. We will reflect on the consequences brought by the post-industrial society to the field of criminal law with its evolutions and influences on the punitive system according to its applicability having as a measure the restrictive penalty of law and the flexibility of the citizen's guarantees, whether for more or less, depending on the seriousness of the criminal act committed. In this context we will examine what characterizes the expansion movements and its consequent punitivism that came with the birth of the enemy criminal law theory which was developed by Günther Jakobs. A brief biography of this author will be exposed then we will pass on to the analysis of his penal functionalism in which the enemy criminal law is inserted. We will identify who the enemy is in relation to what the citizen is; how the enemy expresses himself within the criminal law and its reflections in the criminal legislative production, especially the Brazilian one. In order to develop this work we applied the deductive scientific method together with the hermeneutical method and as such it can be classified as an explanatory research because it is a theoretical approach of the proposed theme.

VL  - 6
IS  - 4
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Author Information

Carlos Augusto Machado de Brito

Department of Law Sciences, University Center of João Pessoa - UNIPÊ, João Pessoa, Brazil

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APA Style

Augusto Machado de Brito, C. (2023). Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. International Journal of Law and Society, 6(4), 274-282. https://doi.org/10.11648/j.ijls.20230604.14

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ACS Style

Augusto Machado de Brito, C. Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. Int. J. Law Soc. 2023, 6(4), 274-282. doi: 10.11648/j.ijls.20230604.14

Copy | Download

AMA Style

Augusto Machado de Brito C. Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us. Int J Law Soc. 2023;6(4):274-282. doi: 10.11648/j.ijls.20230604.14

Copy | Download

@article{10.11648/j.ijls.20230604.14,
  author = {Carlos Augusto Machado de Brito},
  title = {Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us},
  journal = {International Journal of Law and Society},
  volume = {6},
  number = {4},
  pages = {274-282},
  doi = {10.11648/j.ijls.20230604.14},
  url = {https://doi.org/10.11648/j.ijls.20230604.14},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20230604.14},
  abstract = {The present article aims at analyzing what is understood by expansion of the criminal law. This expression was coined by the Spanish penalist Jesus Maria Sanches. We will reflect on the consequences brought by the post-industrial society to the field of criminal law with its evolutions and influences on the punitive system according to its applicability having as a measure the restrictive penalty of law and the flexibility of the citizen's guarantees, whether for more or less, depending on the seriousness of the criminal act committed. In this context we will examine what characterizes the expansion movements and its consequent punitivism that came with the birth of the enemy criminal law theory which was developed by Günther Jakobs. A brief biography of this author will be exposed then we will pass on to the analysis of his penal functionalism in which the enemy criminal law is inserted. We will identify who the enemy is in relation to what the citizen is; how the enemy expresses himself within the criminal law and its reflections in the criminal legislative production, especially the Brazilian one. In order to develop this work we applied the deductive scientific method together with the hermeneutical method and as such it can be classified as an explanatory research because it is a theoretical approach of the proposed theme.
},
 year = {2023}
}

Copy | Download

TY  - JOUR
T1  - Criminal Law Expansion and the Enemy Criminal Law: It Is Among Us
AU  - Carlos Augusto Machado de Brito
Y1  - 2023/12/06
PY  - 2023
N1  - https://doi.org/10.11648/j.ijls.20230604.14
DO  - 10.11648/j.ijls.20230604.14
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 274
EP  - 282
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20230604.14
AB  - The present article aims at analyzing what is understood by expansion of the criminal law. This expression was coined by the Spanish penalist Jesus Maria Sanches. We will reflect on the consequences brought by the post-industrial society to the field of criminal law with its evolutions and influences on the punitive system according to its applicability having as a measure the restrictive penalty of law and the flexibility of the citizen's guarantees, whether for more or less, depending on the seriousness of the criminal act committed. In this context we will examine what characterizes the expansion movements and its consequent punitivism that came with the birth of the enemy criminal law theory which was developed by Günther Jakobs. A brief biography of this author will be exposed then we will pass on to the analysis of his penal functionalism in which the enemy criminal law is inserted. We will identify who the enemy is in relation to what the citizen is; how the enemy expresses himself within the criminal law and its reflections in the criminal legislative production, especially the Brazilian one. In order to develop this work we applied the deductive scientific method together with the hermeneutical method and as such it can be classified as an explanatory research because it is a theoretical approach of the proposed theme.

VL  - 6
IS  - 4
ER  -

Copy | Download