Legal Wrongfulness: Conceptions and Sanctions
Item 12: Wrongfulness and Legal Sanctions
Conceptions of Wrongfulness
Classical Conception
The classical conception of wrongfulness considers unlawful conduct as a dependent variable of the concept of “good,” and therefore, illegality is defined as an evil. The law operates as a repressive instrument of crime, attributing a penalty involving punishment or an evil for the guilty subject. However, not all evil actions are to be covered by the law; the law can define its own wrongs that do not necessarily coincide with morality. Thus, we distinguish between the concepts mala in se and mala prohibita. The former refers to morally unacceptable behavior, while the latter may be morally irrelevant but, once prohibited by law, is established as mandatory, and its violation entails a penalty.
Positivistic Conception
The positivistic conception assumes a critical stance towards the initial conception. Its author, Kelsen, adheres to strict or purely legal concepts. According to Kelsen, the offense is a condition of law; in no case can it be described as unlawful, since it is what makes the law function as such. It is therefore unthinkable for this author to conceive of law as illicit or harmful. No illegal values referring to a metapositive right or any other political or moral considerations can be introduced; therefore, there is no mala in se character in law.
Legal Sanction: Concept and Characterization
Definition and Role
A legal sanction, as a form of punishment, is a necessary mechanism to ensure and guarantee compliance with the law. Penalties are prime examples of legal rules, which are characterized by the imposition of duties and the corresponding allocation of rights. In case of failure to comply, the penalty structure is imposed. Thus, it appears as a secondary, often unwanted, derived effect, serving a retributive and exemplary role.
Distinguishing Features
Legal sanctions have a distinct characterization from other sanctions, distinguished by their special rigor and degree of formality: they are socially organized, have recourse to the use of force, and organs have specific enforcement powers. According to the Italian philosopher of law, Norberto Bobbio, what characterizes them is the maximum degree of institutionalization. In any rule of law, it is essential for the system to make public everything related to the imposition of sanctions.
Thus, Ruiz de la Cuesta contends that it should be clear that:
- What is punishable (behavior subject to sanction)
- How one is punished (type of sanction)
- Who punishes (law enforcement agencies)
- In what ways one is punished (procedure and resources that can be exercised against them)
- Where one is punished (locations where penalties are imposed and met).
Coercive vs. Legal Sanction
Finally, we must differentiate between coercive and legal sanctions. The former admits the possibility of physical force application by a social organization, but it cannot be solely identified as such, as many legal actions are non-coercive in nature. Thus, a legal sanction is defined as a legal action set either to strengthen respect for its own standards or, where appropriate, to remedy the effects of non-compliance.
Types of Legal Sanctions
One of the most important distinctions is that made by Norberto Bobbio, who distinguishes between positive and negative sanctions.
Negative Sanctions
These are measures that tend to counteract the failure of a rule of law, and can be further categorized as retributive and restorative. Notable examples include criminal penalties (e.g., misdemeanors or petty offenses) with the consequent deprivation of freedoms, rights, or property of individuals, and administrative sanctions (e.g., fines). Restorative sanctions are characteristic of private law, as they are based on the principle of satisfaction and compensation for damage caused, where the State requires or agrees to pay compensation.
Positive Sanctions
These are measures that seek, through direct action, to promote compliance or enforcement of a rule. They may also be retributive and restorative. The former consists of the establishment of prizes, awards, decorations, etc., while the latter consists of compensation for work, effort, expenses, etc.