A humanização do direito penal brasileiro no século XXI: possibilidades a partir da aplicação do princípio da fraternidade pelo Superior Tribunal de Justiça

Abstract

Fraternity as a legal category constitutes the main theoretical matrix of this study and, within the framework of the French Revolution (1789), it is what makes up the triad “Liberty, Equality and Fraternity”. Unlike the coexistence of Liberty and Equality, Fraternity does not have the same “luck” in the legal field. No legal system in Brazil is referenced in the preamble of the Federal Constitution of 1988, when it provides that the Democratic State was established and “is intended to ensure or exercise two social and individual rights, freedom, security or well-being, or development, equality and justice as supreme values of a fraternal society”. Allied to the category of fraternity in the criminal area and in this context, it is questioned whether Brazilian Criminal Law could be more humanized, if it is based on the Principle of Fraternity. Analysis - the decisions of the Superior Court of Justice to record the results of its application. For this, the method of deductive approach is used, with a study of jurisprudential cases; as a procedural or historical-critical method, with an analysis of the construction of the Principle of Fraternity along the normative evolution of the French Revolution to the Brazilian 21st Century Law; and, finally, the research technique is bibliographical, with reading and review of the specific doctrine complemented with documentary research based on decisions of the Superior Court of Justice (STJ) of the year 2016 in Criminal Law, especially in the Report of Minister Reynaldo Soares da Fonseca. Fraternity as a legal category has been important reflections for Brazilian Criminal Law, with humanizing potential, and this evolution has significant results in criminal science.