In the bowels of Criminal Law against the rich
Departing a little more the last ideas of the column, came here the dear and indispensable companion Fambarp to help. Text to 4 hands, therefore!
Under specific and notorious foundation, we have that the juridical relations must be understood from the material relations of the life that take place within the civil society ; that in the social production of their own lives, men place themselves in certain necessary relations that do not depend on their wills; and that the set of these relations forms the economic structure of a society, on which an overarching structure, legal and political, to which certain forms of social consciousness correspond. OR BE, and it is obvious: it is the mode of production of material life that conditions the production of political and social life.
Materialism represents the foundation of conflict theories. It is in the economic structure of society that the conflicts inherent in the capitalist mode of production are verified, and these conflicts must be managed by an over-structure (political and juridical) that determines the rules that generate and reproduce these conflicts. As we have said: on the one hand, labor law, which determines how lawful the exploitation of the owner of the means of production over the worker; on the other hand, criminal law which, in the most violent manner, guarantees ownership of the means of production to the owners of capital.
One of the instruments used to guarantee the social system, and to control (and reproduce) the conflicts within it, is the RIGHT, which guarantees the unequal relations of capitalist society. In a liberal economic model it could not be different: the criminal law of risk (specifically economic criminal law in the corporate sphere, which includes, for example, environmental criminal law) ensures inequality of treatment between persons belonging to the same social class : the owners of the means of production (entrepreneurs) – and no longer between the holders of capital and the workers (who only have their labor power to offer as merchandise), as does the core of the so-called “classic” criminal law. For example, environmental criminal law is used to exclude from the possibility of exploring the nature of those economic groups that have lost their power struggle. That is, even within the class of the holders of capital there is an internal power dispute.
Here is the space to use criminal law against these NEW ENEMIES, not just against poverty!!
LET’S SEE WITH EYES OF SEEING: in the current political scenario, consciously or unconsciously, this logic operates! As we have seen, the ruling party has not, for the most part, occupied the main space of established power. Large corporations – represented in the National Congress by opposition parties – occupied this space. And here, something that impresses, because we have the following situation: in fact, big corporations are in power (“represented”). However, according to the legal order, power finds its own right as a limit! The question is: how can the government of large corporations be achieved if the law is to be interpreted as a limit to power? Of the two, one is: either a revolution is organized by large corporations, and the power of assault is taken violently, or the right is re-signified, placing it in the position of an instrument of power, and no more than its limit.
Criminal procedural law (which, interpreted from the Constitution of the Republic, must be understood as an instrument of protection of the citizen against the punitive power of the state) is re-signified as an instrument of social defense. Some examples of breaches of procedural guarantees are evident in the current conjuncture: a) magistrates conduct procedural instruction, produce evidence and utter sentences, in extreme opposition to the accusatory system; b) the use of precautionary prisons that do not have any procedural instrumentality (ie, they do not have any characteristic of caution, but rather of anticipation of punishment), violating the principles of presumption of innocence, contradiction and ample defense; c) Awarded awards that at the same time point in several directions are used as sufficient evidence to determine certain precautionary prisons; d) up to a new Code is created for each specific case: for penalties that include the regime closed as initial regime of compliance with penalty, due to the awarding of an award, the initial regime is less burdensome.
With this, we intend to demonstrate that social conflict can not be understood as the cause of crime, but rather that social conflicts are used as a reference to determine the processes of criminalization. In the case of criminal law directed to the upper classes, the conflict of interests lies in the social class itself that holds the capital. It occurs that conflicting interests within this same class exclude some of the political power, which is why they are criminalized, but now based on the discourse of protection of the environment, the tax order, the financial system, or any other legal asset that is not concrete.
Such reasoning does not rule out the idea of selectivity, which is inherent in the penal system. It merely demonstrates that while criminal-law enforcement agencies selectively act as a rule on those who fall into criminal stereotypes who become vulnerable because they assume the roles imposed on them by the imputation of negative values related to that stereotype, the penal system does not act as a harmonious whole. It works in a piecemeal fashion, since each agency has its own interests.