Fundamentals of Criminal Law: Theory, Principles, and Application
Criminal Law: General Principles
The General Part of Criminal Law Theory encompasses:
- Theory of Crime: Conduct (acts or omissions), typicality, unlawfulness, culpability.
Special Part of Criminal Law
Focuses on particular crimes.
Introduction to Criminal Law
Criminal law is a formal mechanism of social control, monopolized by the state. It curbs undesirable behaviors through the threat of sanctions (punishment). The state’s intervention is limited to conduct that injures or endangers specific legal rights (e.g., life, physical integrity, freedom).
These legal rights are protected by law through criminal types. Their breach leads to disciplinary responses, such as sentences or security measures.
- Punishment: Limitation of personal freedom.
- Security Measures: Treatment-oriented interventions (e.g., for individuals with mental illness).
The selection of legal rights and penalties must be covered by extensive formal and conceptual guarantees to prevent the establishment of a police state. Since the 19th century, the principle of legality requires that crimes and penalties be created by law, ensuring democratic debate and legal framework adherence.
Criminal law addresses the violation of essential social values. It intervenes when fundamental legal rights are threatened, a matter of permanent public concern.
Concept of Criminal Law
Criminal law is the set of rules governing the state’s punitive power, associated with legally determined facts, penalties, or security measures. It ensures respect for fundamental social values.
This concept has two perspectives:
- Objective Criminal Law: System of legal rules governing criminal offenses and penalties.
- Subjective Criminal Law: State’s punitive jurisdiction (right to punish).
The State’s Punitive Power: The power to declare facts deserving punishment and establish penalties. It implies the individual’s submission to state power and restriction of fundamental rights.
Various authors have defined criminal law:
- Von Liszt: Set of legal norms established by the state associating crime with legitimate punishment.
- Sebastian Soler: Law referring to offenses and their consequences.
- Mezger: Norms governing the state’s punitive power, connecting offenses with legal consequences.
Criminal law encompasses punitive (punishment) and preventive (security measures) aspects.
Until the mid-19th century, security measures were unrelated to criminal law. Positivism introduced the need for criminal legal consequences beyond punishment to address its shortcomings.
Punishment is retrospective and repressive, based on guilt. Security measures are preventive, aimed at individuals who pose a danger to society.
We distinguish between post-tort and pre-tort actions:
- Post-Tort: Similar to penalties, requiring the commission of a crime and assessment of the subject’s danger.
- Pre-Tort: Applied without a crime, based on a person’s dangerous state (e.g., beggars). This is controversial and should be removed from criminal law.
Coexistence of penalties and post-tort security measures can enhance criminal law’s effectiveness.
Criminal Procedural Law
The set of rules establishing procedures for applying criminal law, determining responsibility, and setting penalties.
Criminal procedural law is essential for materializing criminal law. It is a division of criminal law, ensuring that its principles are reflected in the procedure.
Criminal law realization occurs through the judiciary, unlike civil law, which often operates outside the courtroom. Criminal procedural law is a coordinated part of criminal law, reflecting its principles in the procedure, especially through criminal procedure reform.