IMPUTATION AND JUDICIAL DECISION IN CRIMINAL MATTERS: THE CRISIS OF CRIMINAL GUARANTISM IN THE LIGHT OF THE "IN MALAM PARTEM" ANALOGY IN HOMOTRANSPHOBIA

Abstract

The present research aims to understand the decision of ADO 26, which equated to Law 7716, which deals with the crime of racism, the crime of homotransphobia. Such ruling, issued by the STF in 2016, should be analyzed considering the theory of objective imputation and based on Aristotle's enthymeme, considering the rhetorical use of the arguments employed in the decision's reasoning. That is, the perfect form of argumentation, the syllogism, is here dispensed with in the face of judicial activism. From this perspective, this study aims to understand the judicial functioning of decisions that tend to serve a purpose that deviates from the main function of Criminal Law.