The Insignificance Principle between Germany and Brazil: a Cautionary Tale on Legal Imports

Abstract

The discussion of the so-called bagatelle crimes has led jurists of some Ibero-American jurisdictions to develop the insignificance principle theory, which roughly states that conducts with a low degree of harmfulness do not constitute crimes even when all other prerequisites are satisfied. In Brazil, where it has arguably been most successful, the insignificance principle has purported to be an import of the German Geringfügigkeitsprinzip, originally devised by German criminal jurist Claus Roxin. We will start by comparing the two versions of the principle, emphasizing the possible misunderstandings in the conceptual importation. Then, we will analyse the consequences for the general crime theory of this problematic reception. Finally, we intend to bring to light some of the apparent impasses involved in the application of the insignificance principle. Given that the insignificance principle theory has been developed mostly by a literature focused on practitioners, our main purpose is to take stock of its state and contribute to stimulating a scholarly scrutiny on the matter. We conclude that, despite the confusion with its German namesake and the still unresolved technicalities, the insignificance principle theory has led to an interesting reflection on the relations between fundamental criminal legal principles inherent of the constitutional state and general crime theory. A more solid theoretical basis for excluding from the scope of criminal law conducts that pose little to no threat to society can improve the protection of individual and personal rights within the framework of the principle of human dignity.