November 17, 2022

Fundamental Principles of Criminal Law

Every society is organized around a certain “order” (accumulation of socially predominant values, ideologies, history, etc.), which is why society’s consensus to “organize” around said order arises. Law is the legal instrument that, added to natural social mechanisms such as education, family, religion, etc., seeks to protect these values, with the ultimate goal of maintaining “social order” and “peaceful” social coexistence. ”.

In reality, relations between members of society are not always peaceful and, on the contrary, are often violent, which cannot be controlled by natural or formal means of control, requiring the intervention of violent legal control such as Criminal law. Indeed, Criminal Law is nothing more than a means of social control that uses violence, violence that is subject to the Law and the Constitution.

We must understand social control as the set of social media or social repercussions that serve to order and regulate external human behavior in many different aspects. Social control not only establishes the limits of freedom but is an instrument whose purpose is to socialize its members.

There are two forms of social control:

Informal controls: They are those in which the State does not directly manifest its repressive nature on people, but the pressure comes from other individuals or groups of them, eg. School, family etc.

Formal controls: They are those in which the state manifests its power to repress and control people, ahem. Criminal Law, administrative sanctions etc.

Criminal Law is a means of social control that is characterized by imposing sanctions -penalties or security measures- when serious actions have been committed that threaten the legal assets of the greatest value of society.

Function and Purposes of criminal law

The function that criminal law fulfills is that of being a means of social control, which acts in a subsidiary manner, in the last ratio. Criminal law is in charge of regulating crimes and penalties, and thereby pointing out to society, the behaviors that are criminally prohibited.

What does criminal law seek with the function of social control, it basically seeks 3 objectives or purposes:
Protection of legal assets: Criminal law, by prohibiting crimes, in reality, what it seeks is to protect certain legal assets from the aggression of said behaviors . Legal assets can be defined as those budgets that the person needs to develop their life project and their personality in society.

Prevention of criminal behavior: Criminal law also seeks to prevent crimes, through the motivating function of Criminal Law. This purpose is fulfilled through general prevention and special prevention. The first is addressed to society in general, and the second, to the person guilty of the crime.

FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW

1. CONCEPT OF FUNDAMENTAL PRINCIPLES

The principles are above all, source origin and foundation of what they refer to. For them begins a thing or knowledge. Fernández Carrasquilla quotes Miguel Reale and says that “it deals with… certain logical statements that are admitted as a condition or basis of validity of the other affirmations that constitute a certain field of knowledge”

“The sciences begin with the principles and therefore they explain each and every one of the knowledge of each particular science but they are outside of it and cannot be explained by it.”

“The principles are therefore the best starting point (refers to Aristotle) but in no way represent a point of arrival or terminal state of knowledge, to derive knowledge, the principles must be developed and concretized, in such a way that knowledge that it stays in them does not go beyond generality. In the legal field, this means that they must be placed in a relationship of meaning and harmony, with the norms to which they refer and to which they inspire. The principle that does not apply, not only serves no purpose, but is not really a “beginning of nothing.”

“The legal-criminal principles are conceptual and abstract formulations, not reducible to other concepts of criminal law, from which derives or on which all knowledge and all legal-criminal norms are based and from which, consequently, no practice can be separated. (Theoretical or judicial) of Positive Criminal Law”.
(Fernández Carrasquilla, Page 6 and ss)

It is important to specify that the level at which we frame the study of penal principles is as logical principles, and not as principles of ontological nature, because this would lead us to admit that the crime has existence by itself, which we do not share

2. IMPORTANCE OF THE FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW

We share the idea of Fernández Carrasquilla when he says that the “principles in question serve to determine the ideological and functional orientation of the penal system and to manage penal regulations and control their scope, rationality and legitimacy. Managing criminal legal principles in a coherent way, we will know where criminal institutions come from, where the practice of criminal law is headed, what is the orientation of the criminal system (of which positive criminal law is a part), which is what the penal norms and, above all, what is the frame of reference within which any interpretation of the subordinate norms must necessarily move. There is no Criminal Law without principles…”.

3. PRINCIPLES INCLUDED IN PERUVIAN CRIMINAL LAW

Peruvian Criminal Law includes a series of principles that we find enshrined in the 1993 Constitution and precisely in the Preliminary Title of the 1991 Criminal Code, without forgetting the Human Rights Treaties signed by Peru. Thus we have:

The principle of the teleological nature of penalties.
The principle of legality.
The inapplicability of the analogy.
The principle of harm.
The principle is that sentences are handed down by a competent judge.
The principle of criminal execution.