THE DEBATE BETWEEN LUIGI FERRAJOLI AND ABOLITIONISTS: BETWEEN THE ATTRACTION OF THE FEAR DISCOURSE AND LIBERTY PRACTICES

Abstract

From the beginning of the century, Ferrajoli´s penal guaranteeism has been accepted by several Brazilian jurists. Foregrounded on neo-contractualism, the political-criminal trend aims at the rationalization the punishing authority. It is different from the classical minimalist perspectives since it contains a pessimist strain with regard to the exercise of Penal Law, with a trend towards abuse. Skepticism does not mean overcoming the bases of the State´s law reinforcement apparatus. Current paper problematizes Ferrajoli´s criticism against the Abolitionists´ flows. We will indicate libertarian routes and underscore the limits of theory, acknowledged by the Italian jurist, but ignored by most of his followers. Results show that penal garanteeism constitutes an un-practical theory: its ties to metaphysics and the need to rethink punishment as from the pain that reveals it.