The new hermeneutics of brazilian criminal law in light of the 1988 Federal Constitution

Abstract

Due to constant social demands, it is necessary for norms in general, specifically criminal law, to keep pace with these transformations. Because it is practically impossible for the legislator to keep up with social changes at the same rate, this task becomes the responsibility of the legal practitioner, who needs to interpret the specific case by applying the criteria of a new hermeneutics in criminal matters. The existing legislation, dating back to 1940, needs to be reinterpreted according to the new parameters and perspectives brought about by the 1988 Federal Constitution, through a harmonization of the aforementioned legislations. This interaction allows for the material legitimacy of criminal decisions in accordance with the principles governing the Democratic Rule of Law. Thus, Constitutional Principles become guiding elements of the new criminal hermeneutics and limit the punitive activity of the State, preventing its arbitrary actions against its citizens. As a tool to achieve this goal, the movement known as legal guarantees, or the constitutionalization of sub-constitutional norms, emerges as a way to safeguard the protection of fundamental rights. This demonstrates the clear need to transform our penal law, through the actions of the legislator and through the creation and exclusion of criminal offenses, as well as through the activity of those applying the law, in order to achieve the greater goal of the Brazilian State, which is the guarantee of respect for the Principle of Human Dignity, as a guiding principle of the entire national system and a means of achieving social well-being.