Reincidência: um estudo dos resquícios da escola penal positivista na legislação pátria à luz do princípio da culpabilidade

Abstract

This current monograph discusses how the institute of recidivism is treated by the Brazilian criminal law, analyzing its consequences in the sentence’s assessment and enforcement, in order to demonstrate its relationship with the criminological scientism characteristic of Criminal Positivist School, as well as its consequent violation of the principle of culpability, which entails the adoption of the criminal law of the fact. Therefore, this study will address the purposes of the criminal sanction developed by the Criminal schools, from the nineteenth century and the later theory of the Enemy’s Criminal Law. Then the criminal provisions that take into account the agent’s recidivism will be examined. Later, the principle of culpability will be presented, which relies on constitutional protection, and the instrument of constitutionality’s control, able to avoid the application of rules which constitute obstacles to realization of constitutional precepts. This monograph presents, therefore, a multidisciplinary feature, covering topics of Criminal Law, Criminal Procedure and Constitutional Law.