Criminal Law, Criminology, and Criminal Policy
Civil Law vs. Criminal Law
Criminal law recognizes and protects various civil institutions (e.g., spouse, marriage) to establish certain crimes. However, sanctions in civil law are generally compensatory and reparative, while criminal penalties are repressive.
Key differences also exist regarding the interpretation of the law and the starting point of human life. Civil law admits guilt for compensation, which doesn’t apply in criminal matters. While criminal law has specific principles, it also utilizes general interpretation rules (e.g., Civil Code articles 1919-1924).
Administrative Law and Criminal Law
Certain crimes, often related to corruption, can only be committed by public officials. Administrative law addresses disciplinary actions for breaches of duty, but these sanctions differ from criminal ones and can hinder criminal sanctions.
Political Law’s Influence on Criminal Law
Political law guides criminal law, reflecting a society’s political conception of individuals and their relationship with the community. It defines the society’s type and the most important legal assets deserving criminal protection.
The Purpose of Criminal Law
The purpose of criminal law is a debated topic. While often confused with the functions of punishment, there’s a consensus that criminal law protects legal rights, defined as individual or group interests essential for social harmony.
Social values influence legal rights. The relevance of the protected value and the nature of the attack against it determine the substance of legal guidance. For example, property is a protected value, but criminal law addresses attacks involving significant means like violence, intimidation, or deception, not minor offenses like non-registration of a property sale.
Functions of Legal Rights
- Cognitive Function: Reveals a society’s values (e.g., freedom, equality).
- Minimum Guarantee: Protects fundamental values for harmonious coexistence, preventing a repressive state.
- Systematic Function: Unifies criminal law, particularly in the penal code’s catalog of crimes and penalties (e.g., homicide).
- Teleological Function: Guides criminal law interpretation, determining the scope of a criminal standard (e.g., surgical injury isn’t a crime against health).
Purpose and Functions of Punishment
The effectiveness of criminal law depends on the penalty’s impact on crime and its consequences. Various theories explain punishment’s functions:
1. Absolute Theories
Punishment is justified by the crime itself, not by any utilitarian function. It compensates for the wrongful act. This theory views the state as a guardian of justice, limiting individual freedoms to protect moral values. Criticism: Applying penalties automatically without further purpose assumes all social conflicts can be resolved through punishment.
2. Relative or Utilitarian Theories
Punishment protects society, not just retribution for guilt. This includes:
- General Prevention Theory: Discourages potential offenders.
- Positive General Prevention: Reinforces community confidence in the legal system.
- Negative General Prevention: Deters potential offenders through fear. Criticism: Historically ineffective; uses individuals as means to an end.
- Special Prevention Theory: Prevents re-offending by rehabilitating the offender. Criticism: Resource limitations; views offenders as patients; authoritarian; ignores free choice in some crimes.
3. Mixed (Eclectic) Theories
Combine elements of absolute and relative theories, acknowledging the multidimensional nature of punishment. Examples include:
- Dialectical Theory (Roxin): Considers different stages of punishment (creation of law, judicial determination, enforcement) with varying functions.
- Jakobs’ Theory: Crime violates normative expectations; punishment reaffirms these expectations and restores social order.
Criminal Science Disciplines
Three disciplines cover different dimensions of crime:
- Legal Dogmatics (Criminal Law Science): Studies and interprets criminal law objectively, divided into General Part (rules applicable to all crimes) and Special Part (specific crimes).
- Criminology: Studies crime as a social reality, including criminals, social control, and victims. Key stages include the Italian Positive School, Functionalist Criminology, Critical Criminology, and Abolitionism.
- Criminal Policy: Studies criteria for decisions related to crime prevention and suppression, and their effects. Historically includes guaranteeist, re-socializing, and public safety models.