O princípio da legalidade e sua atuação no direito penal brasileiro: o protagonismo da jurisprudência do Superior Tribunal de Justiça quanto à delimitação do alcance dos tipos penais

Abstract

The principle of legality emerged as a reaction to arbitrariness andextreme cruelty of punishment at the end of 18th century, becoming a constraint to State power. Together with other cardinal principles of the Enlightenment, it has developed into a mechanism of citizen protection and allowed for values such freedom and human dignity to be raised to core principles of a Democratic Rule of Law. In Brazil this principle appears uniformly in past and present Constitutional charts, but also in the first article of the current Criminal Code. In spite of it, these tenets seem to be incapable to stop the challenges arising out of globalization and increasing demands for safety in a risk society. The undoing of theories on juridical values gave way to the legislative creation of new penal regimes devoted to the protection though just symbolic of values barely compatible with the Constitution. As such, the legislative body resorted to vague normative elements, criminalization of omissions and abstract dangers, resulting in wide discretion on the enforcement ofthese norms. At the same time, the strain between valid interpretations and forbidden analogies led to the jurisprudential expansion of crime definitions, including here even the so-called classic crimes. The undesired eclipse of the principle of legality needs to be surpassed in order to prevent endangering the very notion of democracy. This task befalls mostly to the Judiciary, who is responsible for adjudicating conflicts between criminal norms and constitutional warranties, besides establishing limits to judicial interpretation by modulating criminal definitions. Given this institutional mission of making uniform the interpretation of Federal Laws, tackling the charges against the principle of legality should be performed by the Superior Tribunal de Justiça. This mission should also deploy binding precedents and filter mechanismsas the writ of certiorari, which brought the Brazilian system closer to common law and emphasized the analysis of precedents. Choosing this specific institution would favor the interference of other areas of social life in the control of legality, such as the public opinion developed in universities, institutes and diverse areas of scholarship. At last, the practice of making the law uniform requires the development of new toolsand mechanisms in order to provide the Superior Tribunal de Justiça with a concentrated control of legality.