O populismo punitivista e a legitimidade do Estado para punir

Abstract

By the conventional wisdom, the penalty exists only to repay the harm caused by one individual to another. However, this institute criminal law has two biases that, alongside with the retribution, seek to satisfy both the interests of the one who was sentenced and then begin the execution of his sentence, as one who had his rights aggressively limited. After all, it must point out that the penalty should protect his character of punishment, however, without forgetting that it must be able to prevent that more rights are adversely affected and that the individual punished should be reintegrated into society. For this same purpose, it should be noted that before the duty of punishment, the State holds the obligation to act in order to provide decent living conditions to the individual, from this perspective, it is logical to question: then would the state be legitimated to punish? This question is of great relevance to the present days, considering that the population demands more and more state action in order to reprimand those who act contrary to legal dictates, it happens, however, the same popular activism is not observed when enforcing rights and fundamental guarantees provided by the Constitution comes up. It is sought with this work, to make an analysis of these guarantees and guaranteed rights to everyone, as well as rights principles as opposed to the legitimation, or not, of the state to punish those individuals. Noting, at first, that the state must ensure fundamental guarantees and thus prevent, or at least avoid the crime world to be the only viable option, through a brief survey about populism that wants to elevate punishment level, its concept, historical context and application in Brazilian case.