The Law of Betting and Betting on the Law: It's necessary to acknowledge the obvious.

There is a structural inconsistency in the Brazilian legal system regarding the "world of betting" that has become unsustainable in recent years.

On the one hand, the operation of gambling games remains classified as a criminal offense under Article 50 of the Law of Criminal Offenses (LCP), and the jogo do bicho (animal lottery) under Article 58 of the same Decree-Law No. 3.688/1941.

On the other hand, Law No. 13.756/2018 and, above all, Law No. 14.790/2023, established a regime of authorization, regulation, taxation and state promotion of the private exploitation of fixed-odds betting, a category that includes online casino games, the outcome of which does not depend on personal skill, but exclusively on luck.

In short, the legal system has begun to subject conduct that, from a material point of view, is equivalent, to opposite treatment. The resulting question concerns the object of protection: what do articles 50 and 58 of the Misdemeanor Law still criminalize?

Criminal law doctrine has always offered an answer, and with remarkable convergence. The legal good protected by the offense of gambling would be public morality (in the sense of "good customs"), as made explicit by the very structure of the LCP (Law of Criminal Offenses): its Chapter VII is entitled "On offenses relating to the policing of morals," and the heading reveals the paradigm that inspired it.

The classification was intended to safeguard a specific ethical conception essential to Vargas's regime, marked by the disapproval of profit dissociated from work. The weight of this tradition was felt in 1946, when Decree-Law No. 9.215 abolished casinos in the country based on the express grounds of the moral, legal, and religious tradition attributed to the Brazilian people.

The historical origin of these legal instruments is legally relevant. The LCP (Law of Criminal Offenses) dates from 1941, within the context of the Estado Novo (New State); the decree that ended the era of casinos is from 1946, issued in the first months of post-war redemocratization. Both presuppose a conception of criminal law as an instrument for protecting concrete social practices—a policing of morals in the literal sense.

Critical criminology has long identified the flaw in this arrangement, in which the purpose that the norm claims to pursue does not correspond to the function it actually performs, and the resulting inadequacy of meanings produces new social problems.

The distinction is not merely dogmatic, and has practical consequences.

A criminal offense that protects a legitimate legal right is intended to reach the majority of those who harm it, while a criminal offense built on the protection of morality tends to fall on segments that hegemonic morality already deemed suspect. Articles 50 and 58 have always fallen under this second hypothesis.

Thus, an examination of the application of articles 50 and 58 over time reveals a consistent pattern of inevitable selectivity, which does not reflect the universe of those who gamble, but the universe of those whom the penal system usually targets. Repression has always been concentrated on the numbers game bookmaker, on small betting collection points, and on operators with low reach.

The regulation of fixed-odds betting in 2023 made controversy unavoidable, and for a reason that dispenses with criminological criticism; it suffices to examine the normative conduct of the State itself.

This is not merely a matter of hypocrisy on the part of the entity that has historically exploited the lottery as a monopoly. By regulating fixed-odds betting and online games, the legislator affirmed, through a normative act, that the private exploitation of games of chance does not, in itself, offend a legal right that justifies criminal intervention. This vast economic segment, previously considered harmful to public morals, has become subject to regulation, taxation, and institutionalized advertising.

By regulating the exploitation of online casinos by the market, the Brazilian State transforms the argument that gambling offends public morals, a weak argument, into a performative contradiction: the issuer of the prohibition empties its content through its own actions.

To circumvent this contradiction, the argument was made that criminal law would protect the gambler against addiction. This claim, however, does not withstand closer scrutiny.

It is well known that gambling addiction [1] causes real psychological suffering, which produces serious damage to individual and family life. Law No. 14.790/2023, however, provided this risk with the treatment appropriate to its nature, classifying it as a public health issue and, therefore, subjecting it to strict regulation: deposit limits, self-exclusion mechanisms, advertising restrictions and responsible gambling duties imposed on the operator, among other provisions.

Similar to the use of legal drugs, such as alcohol and tobacco, once regulated by administrative instruments, situations of addiction cannot, in themselves, justify criminal sanctions.

It is important to bear in mind that any criminal actions committed under the influence of altered mental states bring this determination into line with the type of injustice or culpability, and from autonomous typical situations, when they potentially or concretely affect the rights of third parties.

Analogous reasoning applies to claims of criminalization based on an alleged continuity between a regulated, lawful activity and crimes stemming from it, especially those related to money laundering and the infiltration of criminal organizations, traditional crimes correlated with the exploitation of illegal economic activity.

The 2023 legislator's response to these risks did not consist of criminalizing gambling, but rather in imposing duties such as identifying the gambler, tracing the origin of funds, auditing systems, and monitoring the operating agent. Given the risks effectively associated with the activity, the legislator chose a control instrument, and that instrument does not belong to criminal law.

The punitive claim concerning the exploitation of gambling thus survived the foundation that justified it: the penal form remained, devoid of the content that gave it meaning. Articles 50 and 58 of the LCP (Law of Criminal Offenses) do not protect any legal good. Rather, they protected a moral conception that the 1988 Constitution did not embrace and that the 2023 legislation ended up discrediting.

Faced with a legal institution that has lost its foundation, it is imperative to recognize its obsolescence, instead of seeking new reasons to justify its continuation, since in a State governed by the rule of law, it is always the punitive power that justifies its claim.

The truth is that after the enactment of the Betting Law, the absence of a legally protected interest in the offense of gambling ceased to be a difficult issue to resolve, remaining only as an echo of a rationale outdated by Brazilian society. It is necessary to acknowledge the obvious.

[1] pathological gambling, F63.0 in ICD-10-CM and gambling disorder, 312.31 in DSM-5-TR.

(*) Maurício Stegemann Dieter is a criminal defense lawyer, professor at the USP Law School, and holds a post-doctoral degree from UERJ, a doctorate, and a master's degree from UFPR. (*) João Bechara Calmon is a criminal defense lawyer and holds a master's degree from the University of Oxford (United Kingdom). The article above was published in Consultor Jurídico.