Jogos de azar no direito penal brasileiro: antinomias e anacronias do controle pela repressão penal

Abstract

At least since 1940s Brazil has maintained a selective, paternalistic and moralistic gambling policy that, in defence of morals and good customs, establishes as a general rule – with some exceptional forms of legalized gambling – that every game which involves money and rely mainly on luck to define winners are illegal and those who practice or explore this type of activity should be punished in the wrath of art. 50 or 58 of Lei das Contravenções Penais (Brazil’s Misdemeanours Act.). A situation that implies that the Brazilian State exercises control over games of chance and its citizens' freedom, based eminently on the moral devaluation attributed to that activity/habit by a dominant moral standard. An attitude that violates the ethical, principled and normative stage of Brazil’s Democratic State of Law by ignoring the very concept of freedom, autonomy and tolerance to diversity that inform and guide this form of government. With this in mind, the present thesis undertakes a careful historical and doctrinal investigation on the criminal institute that imposes the selective, paternalistic and moralistic Brazilian predominantly prohibitionist gambling policy to better understand its origin and contours. This investigation will provide the materials and knowledge necessary to carry out, based on L. Ferrajoli’s Theory of Penal Guarantees, a diligent evaluation of the internal and external legitimacy of the arguments that justify such policy. An evaluation that includes not only the traditional argument that frame the defence of morals and good customs, but also the arguments that have detached themselves from moralistic and paternalistic connotations and today present amoral reasons for the prohibition analysed here; such as the anti-gambling arguments that focus on collateral damage, on the criminogenic force or on the addictive effect of this activity/habit. Finally, we conclude that there are not enough reasonable and legitimate reasons to support the criminal repression of gambling in Brazil, since none of the arguments raised resist the limitations imposed by the separation between law and morality’s principle, the harm’s principle or subsidiarity/necessity’s principle. A conclusion that implies the need for legalization of gambling in Brazil, but with the caveat that this liberalization should be done responsibly through a zealous regulation, given the various dangers found in the midst of gambling. Dangers that are not enough to legitimize criminal repression, but should inspire certain care by the legislature under penalty of this activity cause great damage to society.