Criminal Sciences: Normative, Non-Normative, and Policy Aspects
Criminal Normative Sciences – Method of knowledge: Technical and legal / attribute relationships predominate / World “ought.”
Law (criminal, criminal procedure, and criminal enforcement).
The criminal normative sciences correspond to areas of law that define crimes and their legal consequences, governing the relationship between the punitive power of the state and individual freedom. They regulate the process and ways of establishing criminal liability and have a dogmatic nature, consisting of existing rules that must be met even if the justice or injustice of their content and consequences are questioned. The most appropriate method for their study is technical and legal, primarily through the interpretation of the law.
Normative Criminal Sciences: Criminal Law, Criminal Procedure, and Criminal Enforcement.
Criminal Law – Defines crimes, criminal penalties, and other rules related to the application of criminal law, penalties, and security measures.
Criminal Procedural Law – Regulates criminal prosecution, investigation, actions to promote criminal accountability, arrests, procedural, and other rules.
Criminal Law Enforcement – Regulates the execution of sentences and security measures through the judicial process, aimed at enforcement, prevention, and rehabilitation of the sentenced.
Science of Penal Regulations – Introductory View
The fundamental institutions of criminal law may be regarded as conduct, the crime (which is typical and illicit), the guilt of the subject, the legal possibility to impose criminal penalties or criminal liability, and the penalty, which will be examined in an introductory view later.
The behavior can be understood as a positive or negative, conscious and voluntary human behavior (action or omission). There can be no crime without human conduct with some legal meaning or significance. Human conduct is an integral part of the crime.
The fact can be provisionally understood as typical human behavior prescribed by law as a crime.
Criminal wrongdoing is the antagonistic relationship between the typical fact and the law, causing injury or threat of injury to a legal right protected by law.
Guilt is seen today as the failure or censorship imposed on the subject who practices criminal injustice, and this subject should be able to behave as the law requires.
Criminal liability is the legal possibility of imposing criminal punishment on the individual who committed the typical, unlawful, and culpable act.
Criminal Non-Normative Sciences – Method of knowledge: empirical or scientific / predominate cause-effect relationships or causality / World “be” / criminology, forensics, judicial psychology, legal sociology, forensic science
The non-normative criminal sciences include elements of criminology, medical and biological sciences, psychology, sociology, and techniques such as forensic science. While the normative sciences are primarily concerned with studying the world as it should be, the empirical sciences study the world as it is.
Institutes of Criminal Law – The right of action can be seen as the right to obtain a state court hearing in criminal matters, including the definition of who may invoke this right, the examination of elements of action, conditions for exercising the right of action, and the classification of criminal cases (merely declaratory, constitutive, sentencing, and interim executive), among others.
The process is seen as an autonomous legal relationship between judge and defendant (procedural relationship) and as a procedure (sequence of process) in an adversarial process, including the procedural prerequisites necessary for the emergence and development of a valid procedural relationship (the correct filing by those who may be party to legal proceedings before a judicial body).
The court – the judge as an activity (acts committed by the judge in the process), as a function of the state (task entrusted to the state to decide social conflicts), and as power (internal expression of the sovereignty of the state with authority to decide and impose decisions by force). As an expression of state power, jurisdiction cannot escape political objectives, which may vary depending on the historical and social context.
The right of defense – The right of defense is undeniable. Individual freedom should resist the punitive claim of the state, using the right to due process, a technical defense, the production of all allowed evidence, the communication of all proceedings, and the right to present arguments to appeal decisions, the right of self-defense (being interrogated by the judge and giving evidence of innocence), and not to be wrongly accused.
Criminal Non-Normative Sciences: Criminology
Among the non-normative criminal sciences, criminology emerges as an interdisciplinary and empirical science, which studies crime and its risk factors, the offender and their criminal or diverted conduct, and the way to re-socialize them. It also studies the victim, their position in the dynamics of the offense, the forms of victimization (ranging from the injury caused by the crime itself to the way the victim is treated and institutionally assisted by the state and society – Victimology). Furthermore, it studies the social control of crime and its effectiveness in addressing the problem of crime.
Criminology
Studies crime, crime factors, the offender, and their criminal conduct. It also studies the victim and social control.
A non-dogmatic, interdisciplinary, empirical science.
Studies the problem of crime in social and individual contexts.
Positivist Criminology
– Blames the individual for any legitimate social order.
Critical Criminology
– Undermines any social order, blames society.
Branches of criminology:
– Criminal Biology (studying the endogenous factors of crime):
a) Criminal Anthropology, b) Criminal Psychology, c) Criminal Endocrinology.
– Criminal Sociology (studies the exogenous factors of the offense).
Forensics is a set of techniques for criminal investigation of individual cases, using knowledge from many areas to discover the truth about the existence and circumstances of a criminal act.
Legal medicine is a field related to medical sciences with important applications in the penalty area, studying energy and vulnerating instruments, lesions in the body, the processes and causes of death, medical-legal aspects of carnal intercourse, violence, pregnancy, childbirth, abortion, live birth, the puerperium, deviations of sexual behavior, genital morphology and intersexuality, and the identification of persons by blood, fingerprints, and other means, and the psychopathology of interest to the application of criminal law.
Legal psychology studies the psychological aspects of testimony, the testimony of children, lying in court, the mental processes of uptake, retention (memory), and playback of events, the role of emotion in procedural subjects, and the psychology of the accused. For some authors, it is not an autonomous science but a particular application of psychology.
Criminal Science is bound to Philosophy, History, and Politics. The legal phenomenon can be considered under three aspects or dimensions.
Dimension: fact / norm / value.
Analytical Focus: Subject matter of Sociology of Law / Science of the Study of Law / Object of Study Philosophy of Law.
Plan problems or issues: It relates to the problem of the effectiveness of law / It relates to the problem of the validity of the norm / It relates to the problem of the foundations of law.
Objective Part: Action = voluntary body movement (cause) that produces a change in the world (result) / typical / antilegal.
Subjective Part: (guilt) / Liability / fraud or negligence.
Causal concept of crime influenced by positivism (19th century)
a) It was erroneously believed that knowledge of “pre-legal” reality was enough to solve the problems of legal reality.
b) The second criticism of the system was causal formalism, where it was enough to intellectually frame a natural fact within a rule of law, drawing the consequence or penalty provided by law, which would already be doing “better justice”.
This humanization and rationalization can be observed throughout history:
– The control of violence by the limitation and, subsequently, the prohibition of vengeance.
– In the growing separation between law and religion.
– The replacement of private justice public justice.
– The restraint (or abandonment) of dire punishment, perpetual, corporal punishment as the penalty of death and mutilation.
– In recognition of the individual guarantees in the face of punitive power state. Such as the presumption of innocence, legal defense, due process, the preservation of physical and moral integrity of prisoners, among others.
1st line of evolution: the emergence, alongside the criminal law, not a punitive criminal law, a right of intervention, less security, but also less severe and not stigmatized as criminal, or
2nd line of evolution: the emergence of a two-speed criminal law, a right to “two faces”: one, guarantee funds in prison and another, less security, but no prison sentence, or
3rd line of evolution: the emergence of a penal law of the third speed, which preaches the maximum intervention of criminal law, including the rise of the prison sentence, and eliminating or reducing individual guarantees, to the enemies of the state (criminal law enemy). And on the other hand, the maintenance of a minimum guarantee and criminal law for citizens, similar to the Enlightenment ideology. (Gomes, 2007, 240).
Moment explanatory – Criminology:
We can, to recognize the role of criminology, studying the so-called gender-based violence, whose substrate social discrimination against womenand especially domestic violence.
Decision-making moment – Criminal Policy:
The main innovation of the Maria da Penha Law was the choice of criminal policy specifically directed to the exclusive protection of women, called the weaker sex, as opposed to the stronger sex. The Maria da Penha Law brings several measures that aim to prevent domestic violence and gender.
Moment instrumental – Criminal Law:
The Maria da Penha Law Major’s worth of paragraph 9 of article. 129 of the Penal Code, which established detention of 6 (six months) to 1 (one) year, paragraph, added by law 10.886/2004. With the increase brought by the new law, the penalty became the detention of 3 (three) months to 3 (three) years, taking the characteristic of infringement of lower offensive potential as art. 61 of Special Law that permitted the application of Law 9099/95 on the benefits of injury in domestic violence.
Criminalization: It is identified (in general) with the interventionist movement (such as Law and Order) and authoritarian models. Means to raise the category of criminal offenses hitherto unknown facts of law, illegal or considered only civil or administrative, or anti-social, but have been tolerated.
Decriminalization: He identifies himself (in general) with the non-interventionist movement (such as criminal law at least) and the liberal models. It means removing the criminal character of certain facts, but still keep them as criminal offenses (criminal misdemeanors), or even fail to recognize it as criminal acts, continuing as illegal in other sectors of town, or even make lawful (permitted) certain criminal acts.
Penalty: He identifies himself (in general) with the interventionist movement (such as Law and Order) and authoritarian models. It means enhancing the penalty in response to anti-social behavior or already defined as illegal, using the legislative route. However, in terms of doctrine and judicial penalty is possible to observe a fact as a result of the activity of interpretation of law by the doctrine and jurisprudence.
Decriminalization, is identified (usually) not with the interventionist movement (such as criminal law at least) and the liberal models. Means the use of measures to impose conditions to restrict the application of the penalty, or allow the substitution of imprisonment for punishment or restriction of property rights, or even prevent the execution of prison sentences. All this, without excluding the criminal nature of it.