O controle de constitucionalidade da pena desproporcional em busca da resposta certa

Abstract

The research notes the need to accomplish in Brazil the judicial review of disproportionate penalty. If the stain pen is in jeopardy of conduct, the judge must acquit the defendant. However, if the stain remains at excessive quantum of sentence in the abstract, then the judge should disregard the sanctioning secondary rule applying to the case another penalty, withdrawal of paternal criminal legal system, which is proportional to the present situation. The Dworkin’s theory allows this judicial review to show that a decision leading to the principles of the law of the discussion forum devoted to democracy, and not vice versa. Moreover, the present law as an argumentative practice that aims to give the case the right answer, which will be achieved through a constructive interpretation of the moral principles of the community, Dworkin tie this election of the new sentence, away from the judicial decisionism. For the election of substitute penalty, the judge must find the settlor principle of incrimination, seeking it in another criminal type. This will be worth (right answer) to apply to the case.