Pressupostos para umateoria penal na filosofia do direito de Hegel

Abstract

The present dissertation tries to undertake a hypothesis of interpretation of penal theory, based on the purpose of special prevention with the intention of understand in the work the Principles of Philosophy of Right of Hegel the penalty as promotion of social freedom. In order to do so, the conceptual roots of the objective spirit are presented which, from oppositions with Kantian practical philosophy, are formulated on the immanent rationality of historical and social institutions and are anchored in the concept of will and freedom in itself and for itself. Such a concept is developed in its logical and political stages in which the question of the penalty is approached in different ways. It is presented an approach of the penalty from the point of view of the negative freedom of the person of right, exposing the deficiency of the abstract right and its lack of anchoring in the State and the basic understanding of the crime as an injury to the just. It is exposed the analysis for a theory of the penal and the theory of the action, as an ground for the subjective morality, which implies in the necessity of the concept of objective imputation for the consideration of the punishment. The issue of punishment is set out in ethics, which presents fertile elements for contemporary criminal law. The central objective of the present work is precisely to understand in what extent the penalty, as a dignification of the criminal's rationality, as a presupposition of its recognition as a free being, can reach the objective and subjective point of view, with the aim of restoring the right by the law, through the reconciliation of the right with itself in the penalty; and how the criminal reconciles himself and is recognized in the law, in which the former will be protected by a criminal action. Thus, it is sought to actualize the logical movement of the spheres of freedom, in order to determine the nature of the criminal act. In this sense, honoring the criminal individual as a rational being will be the Hegelian foundation for the criminal proposal of prevention: be it general positive or special