A culpabilidade e a jurisprudência como “forma viva do direito”: homenagem a Alberto Silva Franco

Abstract

The present article is offered as a simple tribute to the extraordinary criminal law jurist Alberto Silva Franco. It is well known that his prestigious “Código Penal e sua interpretação jurisprudencial” marked an era in Brazilian doctrine and case law. It is true, as has already been stated, that case law is “the living form of Law”. This is because Law is a science of practical reasoning and is instrumental to praxis. Nevertheless, what can be observed is that, if on the one hand the doctrine has the purpose of providing solid theoretical foundations to reach decisions whose basements are adequate and consistent, on the other hand, the doctrine often relies on case law. The case of normative mens rea is a significant example of the contribution of case law to doctrinal advancement, so much so that the cases heard in the German Reich court and the seminal work of Reinhard Frank maintain their reflections to nowadays. In this way, the article is composed of a first part, in which a brief evolution of the theory of crime is presented, and a second part that approaches the normative concept of mens rea and the intersection with case law as a propitiator of the genesis of this conception, making reference to Silva Franco’s classic book on the subject.