“Enemy Criminal Law” And “The Controversy”

Abstract

This article intends to present a critic to the“Enemy Criminal Law” theory – the particular and uniqueform that is presented by Gunther Jakobs – through thenovel “The Controversy of Valladolid”, written by Jean-Claude Carrière.Indeed, it seems plausible the analogy between thearguments brought to sustain the right to oppress andexplore the natives of the so called “New World” in theXVI century and those used to justify a criminal lawnecessity able to deal with terrific threats through thebasic rules exception of the democratic organization.Jakobs´s theory allows – even if only in great hazardhypothetical scenarios – the fundamental rights violationof the democratic law State. Therefore, it’s required refutedecisively and under the most different angles of approachthis pleas, that enlarges the punishment power or releasetheir discursive fetters. It seems reasonable that such acritic starts also in literature.