Concepts of Criminal Law
Concept of Criminal Law
Criminal law establishes the legal rules governing the State’s punitive power and legal rights that protect essential community interests. It prohibits certain conduct, deeming it criminal or establishing dangerous conditions associated with penalties, security measures, and legal consequences.
Not every rule of law is criminal; illegal conduct must reach a certain level of gravity to be criminalized. Similarly, not all crimes are subject to criminal laws; other areas of law, such as Civil or Commercial Law, provide rules and sanctions for offenders.
Criminal laws act as a safeguard for fundamental collective values. The legal protection provided by the order of rights protects community interests. Both fundamental values and rules are integral to the definition of criminal law. Criminal law enables social life by protecting community interests. However, some individuals disregard this protection, highlighting another crucial aspect of criminal law: the threat of punishment or other legal consequences.
Objective and Subjective Criminal Law
Criminal law, as a set of rules that punish serious unlawful conduct (crimes), is considered objective and is referred to as jus poenale. However, there is also a subjective aspect of criminal law, which is the State’s power to create and apply criminal law, recognizing that rules are ineffective without enforced sanctions. This concept is also known as the right to punish.
Penalty, Security Measures, and Civil Liability
Penalty refers to the restriction of rights or personal freedoms applied to an individual found guilty of committing illegal acts. However, if the conduct is unlawful but the individual is not considered guilty due to factors like alcohol, mental deficiency, drugs, or anything affecting their mental state, security measures are applied instead of penalties. These are legal consequences of the conduct. Civil liability, while regulated by Penal Law and determined within the criminal process, is not criminal in nature but belongs to civil law. It pertains to damages caused by the committed behavior (ex post), while criminal liability focuses on prohibiting criminal conduct (ex ante).
The Role of Criminal Law
Instrumental Function
Criminal law serves to protect legal rights, both individual and collective. Individual rights include life and property, while collective rights encompass the environment, administration of justice, and smaller communities (e.g., corporate crime). The ultimate goal is to prevent harm or threats to these rights, with criminal laws acting as a deterrent through punishment. This is a general function of crime prevention.
A second function is special prevention (Art. 2 CP), which focuses on the individual who has already committed a crime and is serving a sentence. The aim is to re-educate and reintegrate the offender to prevent recidivism. While these functions aim to prevent crime, they are not always effective. Some individuals commit crimes despite the threat of punishment, and some re-offend after serving their sentences.
Every rule of law must protect a legal right, either individually or collectively. For effective protection, it must be constitutional (e.g., protecting a specific moral is not possible if the constitution mandates ideological pluralism). However, not everything in the constitution needs criminal law protection. The legislature must consider several principles when choosing which legal interests to protect:
- Principle of Fragmentation: Only a part of the legal system is protected, focusing on the most serious attacks.
- Principle of Subsidiarity: Criminal law acts as a subsidiary protection when other areas of law are ineffective.
- Principle of Minimum Intervention: Criminal law should only intervene in cases of severe attacks on the most important legal assets.
- Principle of Legalized Intervention: State control over punitive power.
Role of Legal Protection of Property
Every offense involves a legally protected interest. The question is which legal rights require criminal protection. The legislature has broad discretion, except in cases outlined in Articles 42 and 46 of the Constitution, which address criminality requirements and mandate the protection of the environment and heritage. Environmental protection can be criminal or administrative, while heritage protection must be through criminal law.
Beyond these cases, the Constitution doesn’t specify which legal rights require criminal law protection. Legal theory aims to limit the legislature’s power to punish conduct and prevent overreach. Theories have evolved to address this:
- Sociological Theory: Only legal rights essential to society should be protected. The challenge lies in defining what constitutes essential goods.
- Constitutional Legal Theory: This theory emphasizes the limitations of previous theories and argues that only unconstitutional legal goods cannot be criminally protected. It encompasses previous theories but also limits the legislature’s ability to protect legal rights.