DOGMÁTICA PENAL: FUNDAMENTO E LIMITE À CONSTRUÇÃO DA JURISPRUDÊNCIA PENAL NO SUPREMO TRIBUNAL FEDERAL

The form of construction of criminal decisions within the Federal Supreme Court, with the use of principles, distances itself from dogmatic concepts, produces voluntary and subjectivist decisions, generates distortions in Brazilian criminal policy and causes legal uncertainty in the interpretation of the institutes that surround the analytical structure of the crime and that direct the criminal response. This paper demonstrates that dogmatic statements, developed in the theories of crime, Brazilian Journal of Development Braz. J. of Develop., Curitiba, v. 6, n. 8, p.60272-60303 aug. 2020. ISSN 2525-8761 60273 need to be observed in the construction of criminal decisions, with the understanding of the Brazilian legislator’s choice of the finalist system, assumed in the reform of the General Part of the Penal Code, occurred in 1984. In the examination of the criminal decisions of the Supreme Court, the methodological tool of judicial decision analysis (MAD) enables the critical confrontation of the arguments used in the face of the dogmatic criminal present in the Brazilian legal system. The current model of the Court to decide criminal matters, without dogmatic limits, represents a great risk to criminal law, which is based on the structuring principle of legality. with particular reference to the functions of criminal dogmatics and penal principles, the research indicates an alternative for the construction of criminal decisions, with the defence of coexistence between the principles and criminal dogmatics, with an attempt to reconcile the ontological and normativist methods in the examination of criminal institutes.