FUNDAMENTAL RIGHTS AND THE APPLICATION OF THE TOPICAL-HERMENEUTIC METHOD IN THE THEORY OF CRIME

Abstract

This article investigates the applicability of the topical-hermeneutic method within Brazilian criminal law, particularly in cases in which the criminal liability is excluded, despite the absence of express statutory provision. The central hypothesis of the research is that this method of interpreting criminal law — which seeks to balance the systematic application of legal norms (syllogistic) with the analysis of the concrete case (topical) — does not violate the principle of legality, but rather concretizes it, by allowing decisions which preserve human dignity. It is argued that the topical-hermeneutic method understands the law as a negative limit, one which prevents arbitrary punishment, and the concrete case as a positive limit, which may legitimize the judicial exclusion of criminal liability, even if there is no express statutory provision.