Do direito à manifestação no ordenamento jurídico brasileiro: uma análise acerca da necessidade de edição de novas leis face à perspectiva da expansão do direito penal

Abstract

Here will be discussed the need for legal rules that regulate the existence of public demonstration, right that have constitutional seat in the Brazilian legal order. The elaboration of the concept of what is called public demonstration cannot be done without the previous definitive of some terms that are somehow unknown to Criminal Law, specifically, freedom, right of resistance and civil disobedience. The freedom of speech, and, therefore, the freedom of assembly are inserted in the right of freedom lato sensu, all being rights that, however fundamental, can be limited. The right of resistance, which has seat in the Declaration of rights of the man and of the citizen, includes the behaviors that aim to sever with the constituted order in a way that puts the system in crisis. The civil disobedience, on its turn, is a species of the right of resistance, and consists in the pacific protest against something that is considered contrary to justice. The public demonstrations occur in the use of the right of resistance, and, when peaceful, are also in the margins of the civil disobedience. The right to demonstrate is guaranteed by the Constitution in its article 5, especially in the subsections IV and XVI, that ensure the freedom of speech and the freedom of assembly. The right to demonstrate needs legal regulation on Brazil, and many law projects about the matter have been taken to the appreciation of the legislative, many of them about criminal matters, especially the creation of new crimes. Criminal Law, as an instance of social control, ought to attend to certain functions, and cannot have a purely symbolic meaning, only as a State’s answer to the social Dissatisfaction. In this way, must be detained the so called unreasonable expansion of Criminal Law, as its taught by Jesús-María Silva Sánchez, including on what comes to the referred law projects.