A (Ir)Racionalidade legislativa e a política criminal de drogas no Brasil

Abstract

The present article intends to carry out an analysis of the concept of legal positivism, the criticisms of this theory, the subjectivities that surround the criminal legislation, the rationality criteria developed by Díez Ripollés, and a review in search of incongruities in the last ten Brazilian legislations that deal with the issue of drug repression and an assessment of the punitive proportionality of these laws and their incompatibility with reality. The methodology used is the bibliographical research aggregated to the documentary research (legal texts and news provided in information portals). From the researcher it was discovered that the law does not necessarily seek justice and that the legislative process is permeated by the particular interests of legislators. It is also demonstrated the need to establish criteria to investigate the rationale of operational legislation, especially when these are criminal. Finally, by analyzing the latest drug legislation, it has been shown how the legislator is susceptible to political and social changes, and how this is reflected in the legal order.