Exigibilidade de conduta diversa: uma análise à luz do funcionalismo teleológico-sistemático

Abstract

The present work aims to analyze one of the culpability components, which is the concept of enforceable conduct. The purpose of this analyze was to comprehend if the theory adopted by the Brazilian Criminal Justice System is legitimated in the Rule of Law. The concept analyzed goes through the historical development, the understanding of the model of the Criminal Code, until the major point of a critical analyses of the current use of the concept in praxis. The main point of the critique developed is based on the subjectivity of the decision maker (judge) when analyzing the possibility of sentencing the defendant. Therefore, the following work focus on a theoretical approach constituted by the teleological-systematic functionalism theory developed by Claus Roxin. From this point of view, it will be analyzed the elasticity of enforceable conduct, which often generates arbitrariness in our courts, since the same evidential construction can lead to several conclusions. Thus, it depends directly on the training of the judge and his subjective convictions. During the analysis, it will be demonstrated that on several occasions the sentence of the agent is preconceived, leaving to the judge the duty to write the sentence that must respond to legitimating contents, among them the presence of enforceable conduct. Therefore, the concept of culpability must undergo to a deep restructuring in order to accomplish the objectives of the penalty. The proposal, therefore, without aiming to exhaust the theme, is to use the functionalist influence, trying to problematize the Brazilian criminal system, with the objective of not losing sight of the social function and a sense of justice that the law proposes - or should be propose - to materialize.