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Culpability and function: critical analysis of the Günther Jakobss culpability theory

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Thaísa Bernhardt Ribeiro
Total Authors: 1
Document type: Master's Dissertation
Press: São Paulo.
Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
Defense date:
Examining board members:
Pierpaolo Cruz Bottini; Marta Rodriguez de Assis Machado; Renato de Mello Jorge Silveira
Advisor: Pierpaolo Cruz Bottini

The expansion of the Criminal Law is a post modernity juridical phenomenon that is deeply related to risk society. This social, political, technological, economical context affects the criminal legal institutions. It is possible, in this situation, observing news concerning dogmatic reality: the emergence of abstract danger crimes, the increase of omission´s relevance, diffuse juridical estate, discussion about the responsibility of companies, among other effects. The effect of this expansive new social context of punishment, not only implies the emergence of dogmatic news, but also affects the reconstruction of the classic dogmatic categories. Culpability is an pre-existing institute in criminal doctrine that faces semantics changes. In other words, culpability is not built by post modernity changes, but it is quietly rebuilt under customs. This study aims to illuminate this reality of culpability reconstruction in post modernity, by analyzing the changes in culpability institute caused by criminal expansion in risk society. In order to accomplish that, the leading theory for the study will be the criminal functionalism, which is a representative criminal school of post modernity because of its consistency of the current historical moment. The specific theoretical framework is Günther Jakobss work, as this systemic functionalism author is related to a post-modern functional law tendency. The central goal of this work will be analyzing to what extent mistaking culpability for general positive prevention, in order to apply social anxiety of juridical communicative confirmation, as Günther Jakobs does, respecting the functions of culpability in a democracy or not. In this way, with a critical analysis of Günther Jakobs´s work, this study pursues the reconstruction of culpability through the historical function of the individuals appreciation, arising from subjective responsibility and punishment limitation. (AU)

FAPESP's process: 11/04782-8 - The expansion of criminal law in the risk society: responsibility and culpability in the criminal functionalism
Grantee:Thaísa Bernhardt Ribeiro
Support Opportunities: Scholarships in Brazil - Master