O PROBLEMA MORAL DA PUNIÇÃO E AS TEORIAS DE JUSTIFICAÇÃO DA PENA

THE MORAL PROBLEM OF PUNISHMENT AND THE THEORIES OF JUSTIFICATION OF PENALTY

Abstract

The present work addresses the moral problem of criminal punishment and presents the main arguments brought to light by the theories that justify punishment. Which are these arguments? To answer this question, it is intended, using an analytical-descriptive method, to approach the relationship between morality and criminal law from the problem of punishment and the theories of justification of criminal penalties, highlighting that the criminal penalty is not only a legal-normative consequence of the existence of a crime, but it is also a social response that aims to manifest the disapproval of the practice of an action that is considered morally condemnable. Then, we intend to reflect on the need to justify the punishment, showing that both retributivists and preventionists understand criminal law as an effective mechanism of social and even moral control, while abolitionists point out that there is no reason why justify the punishment while denouncing the failure of the penalty of liberty. In the end, it is intended to rethink the theories of the purposes of punishment from a pluralist conception, according to which the punishment, in its multiple purposes, serves to limit the State's right to punish insofar as it always seeks to find a point of balance so that none of its ends overlap with the others. This pluralist conception of punishment depends on a minimalist perspective of criminal law, based on fundamental rights and human rights.