An accidental innovation case on punishment: the brazilian drug law

Abstract

This paper is a reflection on alternatives to imprisonment and, more generally, on the complex relationships betweenthe concepts of punishment and innovation. For this purpose, we will discuss a concrete example taken from the brazilian criminal legislation, a new drug law disposition (2006), in order to emphasize the theoretical interest as well as the ethical stakes which the concept of penal innovation can underscore. This legislation introduces a hyper-improbable modification of the concept of punishment and it will therefore enable us to develop our arguments along seven points: 1) To describe the legislative modification which will serve as the backdrop to our discussion; 2) To introduce the conceptual tools needed to describe this legislative modification; 3) To enunciate the status that the auto-referential systems theory gives to law making; 4) To direct the reader’s attention toward two historically deviant ways to conceptualize punishment; 5) To introduce some historical markers of the dominantconcept of punishment (with respect to criminal justice); 6) To illustrate the re-stabilization and the generalizationof the dominant or “normal” concept of punishment and, finally, 7) To come back, in conclusion, on the centralconcepts addressed in our discussion