It is from classical Roman law that one takes away the lesson of simplicity and at the same time of greatness. Their legal jargon departs from the culture of those days and they manage to transfer authority to the norms destined to the regulation of the people of Rome and its businesses. It is to base the clear and precise manifestation, at the same time concise, harmonious but legalizing, making the rule accessible to all (A. Surgik). There are no dualities or hybrid aspects that would give rise to doubts in the understanding of Roman jargon, in a tendency to authorize the free interpretation of the laws, once delineated with all mastery that defies differentiated exegesis of what the norm really meant.
At that point the jargon brought legal certainty in mind for clarity, understandable to all, who customarily knew the dailyities of their time, their customs and rules.
The jargon that describes the title of this text defines, in a free translation, that there is no crime without law that defines it previously. This is due to the fact that innumerable human behaviors are in society, when living in a group that is made up by unity, which is completed by the aggregation of the social body. These attitudes must, on account of the social contract, define the boundaries of freedom, be the most socially possible in order to achieve healthy living, creating a link between individuals capable of reproducing social harmony. In this way, the behaviors began to be described and specified by law that carries in its letter what is defined as antisocial attitudes, against the principles of the contract that we have while living in society. Note that the principle of free will in our penal code was brought by the legislator when he, in his sentence describes the crime: “To kill someone”, or “to subtract for yourself or for something else mobile,” is not prohibited conducts, but brings the consequences that are the penalties for each act taken as a crime.
It happens that the times and many behaviors are labeled as marginal to stipulated (expected) practices and thus are also seen by the law of penalties as a risk against society and against a claimed state of social defense. Thus, some attitudes can be labeled at first by the traditionality together in society and secondarily and more effectively by the legislator who starts to construct (to serve the interests of some) certain criminal types that serve only as mockery in across borders. The problem becomes more acute when one thinks that these laws are created by the imaginary and social will. By imagining that certain behaviors may become crimes by social acclaim and fantastic appeal for a safer society, walking down a dead-end street can be considered a criminal act punishable.
But there is another problem. The acclaimed principle of legality demonstrates that there must be a condition that instructs the operator of the right to define that there has been a criminal act because that attitude is described as legitimately criminal. In order to have the crime, the act must be associated with some legal device described in the Penal Code, and, that the subject follows strictly the jargon of the article, that he actually “kills someone” or “subtracts for himself or for others mobile thing “. It seems very propedeutic and preliminary this reasoning and it is really that simple, but it is not in this way that the criminal law paths are seen lately.
What is found is a new criminal law and more, a new criminal procedure being described day by day by lawyers who do not understand the quality of the law itself. There is a historical extremism in creating and causing untyped, non-typified criminal types, for the convenience of the interest of some.
Similarly, having the process not follow in its legal meander or in proportion to what is expected by the lawyer has become a symbol of justice and a new criminal case. All these nonsense against criminal and criminal procedural law frames a crucial problem that goes against the rules stipulated by a Process Codex that delimits the steps and possibilities, bringing a greater balance between the actions and a greater parity of arms within the criminal action, between accuser and defender. What we try to do today is to delegitimize this list of possibilities and rules so that the procedure (not process) enters and is modulated in the criminal process in an authoritarian way to achieve what we want: to criminalize at all costs. By imagining prosecution and investigation making “contracts” with the white-collar accused you can imagine what kind of contract is made with the beastly suburban resident and risky areas of the forgotten favelas in the poorer localities.
Not only that they are still created “out of the mouth”, clichés crimes to try to illustrate current events, to the pleasure of some, such as the crime stipulated as “Fiscal pedals”, which in fact raises the question: what kind of crime is this one that does not find legal basis to define the guilt or deceit of an individual? (Souza, A. Peixoto.)
What is wanted is to transform (and this is shown with profound clarity) the right of penalties and the legal process that defines the game played for the benefit of some favored (A. Morais da Rosa). Obviously, being penalized in any way by simply walking in some dead-end street, in times when the society of fear and distress for more security transforms anything different into an enemy to be fought against, the housewife, landlord, , will be relieved to see that the police do their duty by conducting a conventional ostensible “polling”. (Bauman) On the other hand, when trying to find a gap where there is a crime that does not exist in the law and even creates the typification pie, as an example “pedaled”, also shows, in turn, that the creation of apocryphal standards may become a trend in criminal law. Again, defining the interests of some groups, usually and historically, dominant in our society.
Non Typified Ctimianal Types
Creativity for the formation of new behaviors considered as typical is a branch of the personal inclinations of the legislator, which is inserted in the object of study itself and with eyes tainted by its predispositions and political dispositions, putting on paper what it believes to be the correct one. Not always, however, this object that is interpreted remains stable, but with nuances that change of feature to each new interaction, because it is society. Numerous changes of behavior and new cultures come together in the great centers making up a new grouping of senses and understandings of the world around, this is part of the cluster that lives together and that needs to know how to live this whole.
Creating behaviors and classifying them as a crime involves understanding only one class, that is, the one who creates those behaviors. For this there must be a rejection of a section of the social body as established against a few, it is understood that to judge acts and define them as a crime should the judge be well adjusted in the group in which he is a part, thus denying other individuals. In this way, accepting that certain behaviors that are not typical can become criminals depends only on the rejection of one group by the other, it means understanding that power is always in the hands of a few and in favor of that power the criminal system is allowed to be used .
As an example, the street hygiene rules of cities established by certain action groups, legitimized by the state entity and which have the priority of “cleaning up” the traditional centers and places of socially unaccepted individuals, are highlighted. These people are part of the contentious list that must refrain from exposing themselves in the general social scope. Beggars, street dwellers, paper pickers, drug users live in the same area of the city at certain times of the day, bringing a malaise in the surrounding society, which fights their presence by disguising this nuisance. Criminalizing conduct is the salvation for a majority, who believes in the resocialization of that citizen who falls in the criminal network. In this way, drug users are recognized as traffickers, until they prove the opposite; street dwellers as thieving thieves and foreigners as enemies. One who does not know himself walking down a certain traditional street, with no way out, is, in fact, the enemy to be fought. Criminal law creates and engenders its enemies, not for the crimes committed, but for the crimes that they throw at them and that can be practiced by them.
We find the principle of legality being destroyed by some to the detriment of the few, who are stigmatized and despised by the system, which has its freedom reaped for the sake of some classes.
On the other hand, we see the creation of behaviors that are said to be typical and criminal but do not have legal bases to support, has no clinical argument in the criminal sphere that can validate criminalization. Conducts said to be criminal and understood as antisocial, so that some are different from conduct that is criminalized, which are really those that must be tackled, in essence, by criminal law, and even if necessary, really.
The fear is that the laws that emerge will be used more and more to select more and more conduct, criminalizing even more, in favor of the ideology of social defense, which still lives today, equaling everyone before the law. In this way, cultural behaviors considered as different, but that can not be defined as a crime, are criminalized. Normal conduct of citizens of large cities such as walking down family streets can be seen as a crime. Resting on a bench in a square in the company of those who are already resting there may be regarded as inappropriate and thus criminal when time is money. Being different or foreign may be the trigger for criminal law intrusion that sees enemies everywhere.
Indeed, in our contemporary law there are dubious interpretations, always leaving them for the sake of some. Unlike Roman grandeur and simplicity of the past, where parsimony and sharpness were companions of a simple, clear and objective right, which unfortunately was really there behind.