Derecho Penal: Principios y Definiciones

• Study notes on penal law

Constitutional Principles

• Legality
• Presumption of innocence

Definitions of Penal Law

• Subjective perspective (Ius Puniendi): The State's right to punish.
• Includes determining, declaring, imposing, and executing penalties or security measures for crimes.
• Objective perspective (Ius Poenale): The set of legal-penal norms regulating the State's punitive activity.
• Involves defining crimes, penalties, and security measures in abstract terms.
• Principle of Legality (Nullum Crimen, Nulla Poena Sine Lege) limits State's power to punish.

Substantive or Material Penal Law

• Set of norms established by the State that determine the crimes, penalties, and security measures to be applied to those who commit them.

Penal Law (Definitions by Legal Scholars)

• Franz Von Liszt: Set of legal rules established by the State which associates crime as a fact, the penalty as legitimate consequence.
• Eugenio Cuello Calón: Set of legal norms that determine crimes, penalties imposed by the State on criminals, and security measures established by it

Legal Nature of Penal Law

• Branch of internal Public Law, protects individual and collective interests.
• Punishing or imposing a security measure is a public function that strictly resides with the State due to sovereignty.
• Committing any crime creates a direct relationship between the offender and the State, the holder of punitive power.
• Penal Law maintains a Public nature.

Content of Penal Law

• Difference between penal law and the science of penal law lies in their definitions:
• Penal Law: Set of legal-penal norms created by the State to determine crimes, penalties, and security measures.
• Science of Penal Law: Systematic set of principles, doctrines, and schools related to crime, the criminal, the penalty, and security measures.

Study of Penal Law Content

• General Part: Deals institutions, concepts, principles, categories, and doctrines related to crime, the criminal, penalties, and security measures.
• Special Part: Deals with penal offenses and the penalties and security measures applied to those who commit them.

Broad View of Penal Law

• Material or Substantive Penal Law: The substance that constitutes object of study of science of Penal Law, crime, criminal, penalty, and security measure.
• Procedural or Adjective Penal Law: Norms and doctrines that regulate penal process, issuing a sentence, deducting responsibilities, and imposing a penalty by applying substantive penal law.
• Executive or Penitentiary Penal Law: Norms and doctrines that seek to regulate the execution of the penalty in penal centers or designated places.

Aims of Penal Law

• Primarily maintains pre-established legal order and its restoration through imposition and execution of penalty.

Characteristics of Penal Law

• Social and Cultural Science: Regulates conduct considering a valuable end.
• Normative: Conformed by norms that contain mandates or prohibitions that regulate human conduct.
• Positive in Character: Legally valid only if promulgated by the State.
• Belongs to Public Law: Only the State has the power to establish crimes and corresponding penalties or security measures.
• Valuative: Subordinated to an order of values that qualifies human acts according to a valuation; values human behavior.
• Finalist: Teleological science; primordial end is to safeguard legally established order through protection against crime.
• Fundamentally Sanctioning: Cannot cease to be sanctioning because it can never prescind from the application of the penalty.
• Preventative and Rehabilitative: Besides sanctioning, it should aim to prevent crime and rehabilitate the offender.

Analysis of the Historical Evolution of Penal Law

• Era of Private Vengeance: Individuals defended their rights and exacted justice with their own hands.
  • "Law of Talion": No greater harm could be returned to offender than inflicted on victim (eye for an eye).
  • "Composition": Offender or family offered something of value to offended so that the offended don't exercise the right of vengeance.
• Era of Divine Vengeance: Replaced individual will of avenger with divine will. Defense of collective interests injured by the crime fell to religious.
  • Penal justice exercised in name of God.
  • Divine judges judged, imposing penalties so delinquent makes amends and divinity sets aside wrath.
• Era of Public Vengeance: Public power (State) exercises vengeance in name of collectivity or individuals whose legal rights were injured or endangered. Application of penalties was disproportionate and inhumane.
  • The penalty was synonymous with torment.
  • Punishment was severe and cruel.
• Period of Humanitarianism: Began with "Enlightenment", led by Cesare Beccaria.
  • Beccaria opposed inhumane treatment in applying penalties and torture.
  • This era closed the ancient period, opening "Golden Age of Penal Law." Penal Law as a science attributed to Beccaria.
• Scientific Era: Existed until the crisis of Classical Penal Law.
  • Considered Penal Law a unified, general, and independent discipline dedicated to studying crime and penalty from a strict legal point of view.
  • Positive School views Penal Law as branch of Criminal Sociology, using positivistic or experimental method instead of abstract logic of classical school
  • Focus on anthropological, physical, and social factors, considering crime a manifestation of personality and punishment a means of social correction or defense.
  • Founder: Enrico Ferri. Authoritarian Penal Law seeks to protect State, viewing political crimes as violations of special seriousness with severe punishments
• Modern Era: Penal Law is an eminently legal science related to crime, the criminal, the penalty, and security measures.
  • Criminological sciences study from anthropological or sociological perspective

Various Denominations of Penal Law

• Suggestions included: Right to Punish, Repressive Right, Sanctioning Right, Determining Right, Reforming Right, Right of Prevention, Right Protector of Criminals, Protector of Society, Struggle Against Crime, Social Defense.
• Most Prominent: "Penal Law" and "Criminal Law":
  • Despite being more widespread one, current discipline no longer has punishment as its sole purpose but instead seeks to re-educate, regenerate, and rehabilitate offenders so they returns to being something useful for society.
  • Second name alludes to crime: corresponds better to the conception of our science crime is synonymous with crime and is reason for Penal Law

Classes of Penal Law

• Discussed independence some penal rights that have not get been achieved:
  • Administrative Penal Law: Rules that threaten to punish individuals who fail to comply with their obligations to public administration.
  • Disciplinary Penal Law: Tend to sanction public employees in the performance of their duties.
  • Fiscal Penal Law: Sanction non-compliance with fiscal, treasury, or tax obligations. No autonomy, because penal law already sanctions conducts that harm extra-penal interests.

Relationship of Penal Law with Other Legal Disciplines

• With Constitutional Law: Foundational basis in the Constitution.
• With Civil Law: Both regulate relationships among people in social life and protect interests, establishing sanctions to ensure respect.
• With International Law: Connection to issues like Laws in Space, Extradition, International Recidivism, and Recognition of Judgments issued abroad.
• With Legislation studies, analyzes and compares different countries' legislation for penal law reform, adopting laws and institutions that have had the greatest success in fight against crime

Encyclopedia of Penal Sciences

• Includes a set of sciences dedicated to the study of crime, the criminal, and forms and measures of security from different points of view.
• Classification by Luis Jiménez de Asúa:
  • Philosophy of Penal Law: Studies penal issues from philosophical perspective, indicating the universal character of penalty and crime based on nature and goals of the State.
  • Criminal Legal Dogmatics: Science concerned exclusively with studying the norms.
  • History of Penal Law: Studies the evolution over time of penal ideas and institutions and their practical results.
    • Criminal Legal Dogmatics is the study of criminal rules from static point of view; History of Criminal Law does so from dynamic point of view, and can contribute to dogmatics the "knowledge of the previous evolution of particular institutions".

Penal Legislation Compared

• Method for improving legislation, seeking uniformity of legal systems among different countries in different countries
• Criminal Anthropology: Studies physiopsychological traits of criminal man and, based on those, together with environmental and contextual influences, aims to explain genesis of particular criminal acts Cesar Lombroso attributed the birth of Criminal Anthropology

Criminal Psychology

• Studies crime as an act in the normal state of man within the regularities of the psychic life, leaving the study of abnormal ones and of those abnormal for psychiatry field
• Criminal Sociology: Created by Enrico Ferri, despite Rousseau having already spoken of the social factor on crime and studies studies the crime, the penalty, and the criminality as a purely social phenomenon

Penology

• Studies penalties and security measures, as well as post-prison institutions.
• Penitentiary Law: Study of a legal science composed of a set of standards that regulate punishments, security measures, and ensure life of person inside and often outside prison.

Penal Law

• a science of being that regulates the people's duty.

Criminal Politics

• Doctrine that studies the activity that must be developed by the State to achieve prevention and repression of crime.
• Criminalistics: Practical discipline, whose purpose is to obtain greater efficiency discovery criminal and research of crime Studies scene for evidence that may be found on the victim.

Apuntes sobre derecho penal que abarcan los principios constitucionales como la legalidad y la presunción de inocencia. Incluye definiciones desde perspectivas subjetivas y objetivas. También, se exploran las definiciones de varios juristas.