The new general part of the 1984 Brazilian Criminal Code: the reallocation of intent and the finalist evolution of the theory of crime

Abstract

The 1984 criminal law reform marked the most significant doctrinal modernization of Brazilian criminal law since the enactment of the 1940 Criminal Code. Drafted by the Commission chaired by Francisco de Assis Toledo, the new General Part relocated intent and negligence within the statutory definition of the offense, removing them from the sphere of culpability, which was in turn recast as an assessment of blameworthiness and avoidability of the conduct. This article examines, from a historical and doctrinal perspective, the development of the theory of crime in light of the changes introduced by the new General Part, with particular attention to the reworking of mistake of fact, mistake of law, and putative justifications. The study identifies the influence of Hans Welzel’s finalist theory on Brazilian criminal law doctrine, revealing a shift in the focus of criminal law from the offender to the criminal act. It concludes that the restructuring of the offense definition and culpability consolidated a modern conception of criminal wrongfulness, guided by the protection of legally protected interests and by the principles of legality and minimum intervention.