The (i)legality of applying the theory of guilt to the base sentence

The insufficiency of the natural rules of coexistence has allowed the state to intervene in social life by means of punishment, albeit in a minimal way, giving rise to an institutionalised punitive system. Sanctions must be established as state mechanisms of social control and correspond to preventive and retributive purposes in relation to behaviour. They must seek to contain and combat crime and reintegrate offenders into society, preventing them from committing new offences and serving as an example to the community. The theses that support the initial assessment of the penalty vary between the subjective analysis of the offender and the predominance of the elements of the crime. In Brazil, criminal behaviour is typified, which is why the possibility of the concomitant presence of the Criminal Law of the Fact and the Criminal Law of the Author is discussed, in view of the use of the subjective criteria set out in art. 59 of the Penal Code to apply the basic penalty. This question gives rise to the content of this work.