A legislação simbólica aplicada ao direito penal

Abstract

This work deals with the application of the Theory of Symbolic Legislation to Criminal Law Brazilian analyzing the theoretical assumptions of systems theory developed by Niklas Luhmann which underlies the Theory of Symbolic Constitutionalisation crafted in Brazil mainly by Marcelo Neves and Orlando Villas Bôas Filho. The research, which took place from the observation of the lack of effectiveness of the criminal law , refers to the systems theory to analyze this phenomenon, manerira to address other factors influence the legislating process , in particular the social pressures that charge answers state to the issues of crime . Moreover , it approaches the issue of crime involving the popular imagination , with fear as propellant in actions seeking a sense of social security . Thus allowing the phenomenon of symbolic legislation , whereby the legislature , seeking to respond to the social concerns of the population emits a law , in general, more rigorous , providing increased penalties , hardening in compliance with sentencing differential treatment for certain crimes , which becomes inapplicable because no devices were created for social reality which will legislate. So there is a discrepancy between the law and reality , and be profound changes that these laws could be applied as they were issued . It also examines , briefly, the influence that mass media exert this process , as they are the main source of population information . Finally , brings up examples of symbolic legislation in Brazil , namely the Law on heinous crimes and Differentiated Disciplinary Regime.