Perspectiva jakobsiana do direito penal e da pena:

serão possíveis contribuições para a contenção da tutela penal?

Abstract

It is a challenge to debate Jakobs in the context of Criminal Law. Usually, the professor from the University of Bonn is exclusively seen under the perspective of his theoryabout the Criminal Law of the Enemy. This approach minimizes the discussion about his previous theoretical construction and, when there is a discussion, it is about themisconception that Jakobs built a theory that intends to legitimate totalitarian states and societies of terror to the detriment of the individual freedom. The main goal of thisarticle is to build a novel approach, daring to find points in the second phase of Jakobsian theory and conciliate them with a debate about the containment of the expansion ofthe criminal protection. For this purpose, it will be relevant to identify the roles of the Criminal Law and of the Penalty in the systemic functionalist perspective of Jakobs.