Criminal law and the legal nature of Security Measures

Abstract

This article aims to contribute to studies on the institute of security measures, elaborating, through a bibliographic review, a historical overview of the Brazilian theoretical debate about the legal nature of security measures. Relevant, in this debate, the conceptions of criminal law underlying the theoretical foundations that concluded by the administrative legal nature or criminal sanction of the institute and the doctrinal dispute between monists and dualists. We identified that the adoption of the legal nature of an administrative measure was/is commonly elaborated based on the classical assumptions of Criminal Law. In turn, the adoption of the criminal sanction nature of security measures was commonly linked to a positivist conception of criminal law. More recently, however, the criminal nature of security measures is often defended together with the defense of the application of broad criminal guarantees to security measures, which has been happening with an approximation of the legal treatment given to security measures to the criminal law of the fact and parallel to the struggle for citizenship of people with mental disorders claimed by the psychiatric reform. The expression “dualism tending to be monistic” was attributed to this approximation of security measures to penalties, representing a new phase of dualism.