Revista de Sociologia e Política
Print version ISSN 0104-4478
MARQUES JR, Gessé. The law of penal action and the limits of juridical interpretation. Rev. Sociol. Polit. [online]. 2009, vol.17, n.33, pp. 145-155. ISSN 0104-4478. http://dx.doi.org/10.1590/S0104-44782009000200011.
This article analyzes the social limits involved in the juridical interpretation of the Law of Penal Action. Through field research carried out with judges and public prosecutors in the Campinas region of the state of São Paulo, we counterpose juridical readings with data from social and prison realities. More than expounding the normative ideals of juridical notions of "that which should be", this article emphasizes processes of selection and interpretation carried out through juridical doctrine and by those who put law into practice, creating a distance between the data of social reality they perceive on a day-to-day basis and frameworks of juridical interpretation. Through the interviews we have conducted, the paradoxical relationship that legal practitioners maintain with the LEP becomes evident: on the one hand, they believe that its normative structure makes it one the most modern of legislatures, participating in the most developed of theoretical and doctrinary debates and thus emerging as a laudable juridical model; on the other hand - parallel to this way of idealizing norms- it is criticized for its condescending character. Furthermore, insofar as its effectiveness is concerned, a general conviction prevails regarding the "huge abyss" that separates it from national reality. The State is seen as the party that is responsible for this gap, a belief that was constantly reiterated in the interviews we carried out. Most often the State itself is ambiguously defined, thus excluding judiciary power from its portion of responsibility in the lack of effectiveness in putting the Law of Penal Action into practice.
Keywords : Juridical Positivism; juridical interpretation; Juridical Sociology; decision-making analyses; Penal action.