Naturaleza del Sistema de Justificación en Derecho Penal PDF

# NATURALEZA DEL SISTEMA DE JUSTIFICACIÓN EN DERECHO PENAL **Fernando Molina Fernández** Profesor Titular de Derecho penal. Universidad Autónoma de Madrid ## I. INTRODUCCIÓN * The theory of causes of justification is one of the main theoretical blocks that sustain the concept of crime. * There a...

# NATURALEZA DEL SISTEMA DE JUSTIFICACIÓN EN DERECHO PENAL **Fernando Molina Fernández** Profesor Titular de Derecho penal. Universidad Autónoma de Madrid ## I. INTRODUCCIÓN * The theory of causes of justification is one of the main theoretical blocks that sustain the concept of crime. * There are a few essential questions pending about them that have to do with: * The relationship between the system of justifications as a whole and the rest of the elements of crime. * The connection between the different causes of justification. * This question leads to the question of wether it's possible and scientifically fruitful to conceive a system of causes of justification. ## II. PRESUPUESTOS TEÓRICOS DE UN SISTEMA DE JUSTIFICACIÓN EN DERECHO PENAL * The legal system creates a catalogue of causes of justification as part of the task of defining the unlawful fact in norms. * The legislator must be guided by two principles: lesividad (harmfulness) and certainty (legal certainty). * Lesividad: The legislative norms defining criminal offences and causes of justification must define and prohibit those conducts that present harmfulness and only those. * Certainty: The determination or taxativity principle is directly derived from the principle of legality. It states that the legal system must make sure that the norms are structured in a way that guarantees legal security for everyone. * The principle of lesividad doesn't need specific justification because it's not exclusive of criminal law but of the entire legal system. * When it comes to the definition of crime, it's possible to say that there's a clear predominance of the principle of certainty over lesividad. * On the contrary, when it comes to justification, the situation is different. * Since the principle of legality only has a role in preventing the infringement of legal security, it's not enough to have a law defining a conduct as punishable unless it also presents harmfulness. ## III. RELACIONES ENTRE CAUSAS DE JUSTIFICACIÓN * The way to create a system of justification based on a pyramid structure is by identifying a specific function for every cause within the system, while making sure that they’re coordinated with the rest. * There are, however, 3 possible ways to deal with the lack of a specific reason for punishment when it comes to certain types of conflict: * Specific rules: They provide solutions to all the problems that present specific characteristics. * General rules: They solve a few similar problems that present a clear solution, and they are generally the most frequent. * Ultimate rule: It’s provided as a last resort for situations that can’t be justified by applying any other, and it’s characterized by the maximum scope. They’re usually the most controversial, but they also tend to be the most universal and common. ## IV. ¿HAY UN SISTEMA DETRÁS DE LA ACTUAL REGULACIÓN DE LAS CAUSAS DE JUSTIFICACIÓN? * The emergence of causes of justification in criminal law doesn’t necessarily mean that it comes from a coherent scheme of elements or a unified theory. * Although the approach has a systematic nature, the evolution of the legal system has naturally led to a situation where the specific rules are the most typical, and even the least controversial in most countries. * The general rules, as explained above, usually cover all the possible conflicts, and provide solutions to specific conflicts that cannot be solved in any other way. * It’s possible to identify a specific role in this system for the last general rule, which can also function as the last and most controversial aspect of a legal system, and as a unifying element of the system.