Culpability in the New Penal Code

Abstract

The article analyzes culpability in the new General Part of the Penal Code introduced by Law No. 7.209/1984, with the aim of examining its conceptual evolution, its structural elements, its grounds for exclusion, and its relationship with responsibility, imputability, dangerousness, and the theory of error. It adopts a legal-doctrinal and historical-systematic methodology based on the comparison of penal schools and classical and modern theories of culpability, especially the psychological, psychological-normative, and pure normative conceptions, as well as on the analysis of the legislative innovations of the new Penal Code. It argues that the Brazilian penal reform generally embraced the normative theory of culpability under strong finalistic influence, relocating intent and negligence to the typicity stage and reserving culpability for the judgment of blameworthiness grounded in imputability, potential awareness of unlawfulness, and the exigibility of lawful conduct. The article further shows that the new regulation of error properly distinguishes between error regarding elements of the offense and error regarding the unlawfulness of the act, while also adopting a solution consistent with the limited theory of culpability for putative justifications, thus overcoming the old dichotomy between mistake of fact and mistake of law. It concludes that the new Penal Code represents a significant doctrinal advance by consolidating a criminal law of culpability, more coherent with the principle that there is no crime without blame and better suited to individualize criminal responsibility according to the concrete blameworthiness of the conduct.