Análise da utilidade das penas em Rousseau e as origens filosóficas do direito penal do inimigo

Abstract

Modern punitivism and the constant state of vigilance in modern society find theoretical roots in Günther Jakobs' theory of the Criminal Law of the Enemy. Thus, the present dissertation will work on the theoretical origins of the Enemy's Criminal Law, especially Rousseau, as this author is indicated by Jakobs himself as the main influence for the criminal prosecution of the enemy. Finally, Schmitt's reading of Rousseau's work, especially the general will, will be fundamental to explain that Rousseau's thought is not a precursor to Jakobs' thought, but a precursor to guarantor theories and the defense of the rule of law, opposing time to the punitive power of the State as well as the influence of the punitive tradition in the security state that characterizes the Modern State, which is why Rousseau's general will will be fundamental for the differentiation between Rousseau and the punitive thinkers, especially Jakobs and Schmitt, considering that their reading of the general will is different from that proposed by Rousseau, who thought of the general will as a voluntarist element that allowed plurality in political unity, being a tool for the preservation of individual freedoms, the ultimate goal of Rousseau's theory . Likewise, this dissertation will also delve into the practical question of the unfolding of the punitivist tradition and how these contributed to the formation of the current state of affairs, especially the State of Insurance, generating a persecuting and discriminatory State in which security has become the value supreme political system that is supraordinate to the individual rights of citizens.