THE EXPRESS AND IMPLIED COMMANDMENTS OF CRIMINALIZATION IN THE PAST AND PRESENT OF THE BRAZILIAN CONSTITUTIONAL ORDER

Abstract

The 1988 Constitution of the Federative Republic of Brazil established a complex framework of fundamental rights and guarantees, highlighting the express and implicit criminalization commandments, which oblige the legislator to classify certain conducts as crimes to protect relevant legal assets. This study's main objective is to examine these commandments in the Brazilian constitutional order, distinguishing those explicitly mentioned from those implicit. The central issue investigates the nature and extent of criminalization commandments and their impact on current criminal legislation. It is questioned to what extent the ordinary legislator is linked to constitutional commandments and how these influenced Brazilian criminal policy in the protection of fundamental rights. The objectives include identifying and discussing the commandments expressed in the 1988 Constitution, exploring the existence of implicit commandments, investigating the historical evolution of commandments in previous Brazilian constitutions and foreign systems, and evaluating the relevance and practical application of these commandments in contemporary criminal legislation. Using the deductive method and bibliographical research, the study will analyze constitutional norms, doctrine, jurisprudence and legislative documents. The structure of the article addresses initial considerations, comparative history, analysis of expressed commandments and discussion of implicit ones, contributing to a better understanding of criminalization commandments and proposing reflections on possible improvements in criminal legislation and constitutional interpretation.