O recrudescimento do autoritarismo do sistema penal via ativismo judicial

Abstract

This is a course conclusion work, at the level of a doctorate in Law, with a concentration in Public Law, in the line of Hermeneutics, Constitution and Realization of Rights, dedicated to the study of the congenital authoritarianism of the Brazilian Penal System. For this purpose, the thesis investigates the matrixes of authoritarianism in the penal system, using a historical, legal, political and psychoanalytical approach to authoritarianism, understood both as a synonym for discrimination and as an abuse of powers. The influence of the inquisitorial legal-penal tradition on the process of colonization of the Brazilian population, which took place through the genocide of the indigenous population and the enslaved African people, is addressed. It focused on the cultural and legal influence of the enslavement of the African population in the penal system, especially with regard to the production of authoritarian normative acts and the performance of members of the justice system. The work discusses how ideologies, political regimes and authoritarian movements have influenced the maintenance of authoritarian practices in the criminal field over the decades, highlighting the contributions of Escola Positiva and the fascist movements of the 20th century. The process of expanding the penal system, which was already authoritarian and of how judicial activism has served as an instrument to enhance criminal procedural authoritarianism, was also addressed. The investigation, therefore, seeks to investigate how the judiciary became the great legitimizer of authoritarian practices carried out by the Penal System, through decisions contrary to private interests, in the name of supposedly collective values. The authoritarian fallacy, consisting in the denial of fundamental rights to sustain punitive agendas and the traditional selectivity of the penal system, stands out. The research is qualitative and empirical, using a bibliographic and documentary review on the topics covered, but also a critical analysis of the discourse of decisions issued by the Federal Supreme Court in different historical contexts, but with similarities in the constitutional normative structure.