O CONCEITO DE BEM JURÃ�DICO COMO RELAÇÃO DE DISPONIBILIDADE NO DIREITO PENAL LIMITES AO PODER PUNITIVO ESTATAL A PARTIR DA AUTONOMIA DA VÃ�TIMA

Abstract

The text seeks, from the dialogue between the harm principle and the theory of legal good — which provides a more precise concept of the object of injury —, for a solid basis for limiting state interference through criminal law. Using a hypothetical-deductive methodology, it is adopted a concept of legal good as a disposability relation, covering not only the objective aspect, which is usually emphasized by the doctrine, but its relation with the titular subject of the concrete relation. From that, victim’s autonomy and power to have a prerogative related to the objective good are no longer placed from an external perspective, but internal and constitutive of the object of protection of the norm. In this sense, the theory of legal good, together with the harm principle, constitutes a limit to the state intervention on immoral and self-injurious behavior, from a point of view not merely consequentialist, but deontological, characterized by the autonomy of the victim. The prohibited risk and the punishable harm or offense, therefore, have to consider the legal good as a subject-object relation, in order to consider the autonomy of the holder of the relation that is supposed to have been negatively affected.