Sobre a vida e sobrevida da teoria do bem jurídico: reflexões em diálogo com o livro “Ainda vive a teoria do bem jurídico?”, de Humberto Souza Santos

Abstract

Departing from the ideas presented in the recently published thesis by Humberto Souza Santos, this paper aims to promote a dialogue about the current state of the legal good’s theory (Rechtsgutslehre). To do so, a critical exam of both the work’s expository and propositional content is undertaken. Discussions about the limiting function of the legal good’s theory, its tensions with the democratic principle, and its vulnerability due to the consolidation of the category of remote harms are included in this context. Likewise, the paper analyzes the recognition of an imponderable sphere of individual autonomy, the upgrade of the requirement of a suitability nexus between the prohibited conduct and the legal good’s violation to the level of a criminalization’s criteria of legitimacy, and the densification of the concept of a legal good worthy of criminal protection. Ultimately, it concludes that the legal good’s theory remains alive and preserves its achievement potential, despite its need for improvements and complements.