Harm principle, bem jurídico e teoria da criminalização: fundamentos e limites da criminalização legítima em um Estado liberal

Abstract

The democratic legislator cannot exercise his power to criminalize conducts guided only by his own will or private interests, while he must be supported by rational arguments. As in most legal systems of Roman-Germanic origin, Brazilian legal theory seeks to deduce the foundations and limits of legitimate criminalization from the legal good theory. However, in recent years, increasingly more authors have questioned the value of resorting to the theory to criticize current and projected criminal legislation. In contrast, Anglo-American criminal law theorists discuss this topic grounded on the criminalization principles found in moral philosophy, especially the harm principle presented by John Stuart Mill’s thinking. This work proposes to replace the legal good theory with a moral and political theory of criminalization shaped by this and other principles, which will be discussed through the analysis of Joel Feinberg’s work. Being morally valid and coherent with political liberalism, the criminalization principles here endorsed provide the liberal legislator with good, not yet definitive, reasons for criminalizing conducts, while also identifying the limits of these good reasons.