The (Re)normatization of Criminal Law in light of Diffuse Rights

Abstract

Since its sprouting in the end of XIX century, in Germany, until the present moment, the legal-criminal dogmatic exceeded some methodologies, each one in obedience to one determined philosophy. In this aspect, the naturalistic positivism of Franz Von Liszt, Ernst Beling, Karl Binding and others developed from the cause and effect rule, attributing great importance to the conditio sine qua non causality rules. Followed the neokantis with its cultural, social, moral and legal philosophy values, having in Edmund Mezger its greater illustrious representative. Hans Welzel motivated with the proposal of overcoming the legal positivism, having an ontology base and the logical-objective structures, structuralized the finalist philosophy. Against these theories, Claus Roxin elaborates the rational bureaucracy, starting from the conception of the  constitutional order that is peculiar to a Social State and Democratic of Right, attempting to approach the Criminal law to the contemporary society, and finally, linking it to Luhmann sociology theory and the normative perception of Hegel. Günther Jakobs elaborates a criminal system that is inherent to this conception. Not obstructive to these contributions, and inherent to the use of the natural resources by
mankind, added the risks of the contemporary society, as lesson from Ulrich Beck, is formulated the third generation right, that represents the diffuse legal right. In this direction the Federal Constitution in vigor walked, detailing diverse diffuse and collective goods, receiving also, old laws, such as the fragmentation and use of the soil, n. 6.766/76. In the criminal scope, for the persecution of criminal justice in accord with the diffuse guardianship, it is indispensable to reconfigure the described criminal type in art. 50, of Law 
n. 6.766/76, establishing it as a permanent crime, what is equivalent to say that the limitation counting only starts from the instant where, v.g. the necessary infrastructure workmanships are carried through
in the clandestine or irregular land divisions. This article, details this diffuse legal right, and analyzes the criminal type in question, by the objective to understand it as being integrant of the roll of the permanent crimes; therefore it is the only way that it will become possible to promote social justice.