Measure for measure? judicial protagonism in Brazil, Beccaria’s fear, and the criminal procedure as constitutional instrumentality

Abstract

The main objective is to present, based on the Shakespearean play Measure for Measure and the hermeneutical observations of Cesare Beccaria, the necessity of rethinking the role of the court in the criminal procedure. In order to do so, a qualitative research was adopted, as well as a bibliographical-documentary analysis, insofar as it dealt with scientific articles and doctrinal texts, as well as legislative documents and judicial decisions, using the deductive method. The undeniable contribution of Literature to the Juridical Science was thus made, as it makes possible a strong critical subversion, besides portraying cultures and also working with interpretation. In this sense, after the synthesis of the Shakespearean plot, two models of judgments, objectivist and subjectivist, were visualized, which facilitates the debate about the magistrate’s role in the criminal process. This same logic was applied by Beccaria in On Crimes and Punishments, in which the author dismissed any kind of judicial voluntarism, and attributed to the judge the obedient execution of the written Law. Thus, it was found that, since the constitutional reading of the criminal process is intrinsic to democracy, it is incumbent upon the magistrate to construct and maintain the process as a space for effecting guarantees and rights of the accused, so as to be a true spectator. Finally, the excessive emphasis on court decision results in a real disassociation with the accusatory system, as, by ignoring the semantic limits of the legal text, except in the case of constitutionality / conventionality control or in favor of the defendant, it performs a vulgar arbitration, which undermines the constitutional instrumentality.