Das decisões arbitrárias aos axiomas do garantismo penal: um diálogo com Beccaria e Ferrajoli

Abstract

In the eighteenth century, Beccaria (2011) defended arguments which aimed the end of arbitrary criminal practices of his time. The author established criteria of proportional application between punishment and crime, idealized guarantees to the accused that until now were not being applied in criminal proceedings of his time and held that the application of the penalty should not regard the person of the convict, being awarded to him(her) a penalty fair and provided by law. Ferrajoli (2002), in the twentieth century, despite all the social evolution of humanity, published a theory that had as pillars the axioms of criminal garantism. Through logical inferences of these maxims, it is possible to obtain the arguments defended by the author. However, despite the time lapse, Ferrajoli (2002) reinforces arguments that had been presented by Beccaria (2011). Thus, it will be found in this paper the reason of the convergence between the authors, showing that, despite the work of Beccaria (2011), the arbitrariness in criminal sphere still occur, requiring the presentation of the axioms of garantism by Ferrajoli (2002).