Concept and function of Criminal Law, according to doctrine, criminal law or criminal law. Function of Criminal Law. Brief summary: Theory of Criminal Norms; Crime Theory. Concept and classification of crimes. Application of criminal law in time and space.
KEY WORDS: Criminal Law General part
In an introductory way, and in accordance with the doctrine, the concept and function of criminal law, on infractions, principles and rules that regulate the activity, as well as in a strict sense, the dynamic and sociological approach.
The objective in criminal law, the State Power in the matter, knowledge.
Function of Criminal Law, being the symbolic function of Criminal Law. The doctrine usually points out three legitimate functions exercised by Criminal Law, a mission within the Social Democratic State of Law.
Incriminating criminal type plan, performs the function of protecting essential legal assets.
And in a brief summary, the theory of the Criminal norm, theory of Crime, concept and classification of crimes, application of criminal law in time and space, Law can and how it can be defined.
Concept and function of Criminal Law.
According to the doctrine, criminal law or criminal law is the part of the legal system that defines criminal offenses (crimes and misdemeanors) and imposes the respective sanctions (penalties and security measures). It is said to be broad because this definition also encompasses, ultimately, the criminal process and execution.
The definition is correct, but incomplete, since, in addition to defining crimes and imposing penalties, criminal law establishes the principles and rules that regulate the State’s criminal activity, establishing the foundations and limits to the exercise of punitive power, following the example of principles of legality, non-retroactivity, humanity of penalties.
And in a strict sense, it is the part of the legal system that defines criminal offenses and imposes sanctions, as well as establishing the foundations and guarantees that regulate state punitive power.
As mentioned below, State power, through regulation, punishes through sanctions in the face of conduct that does not comply with the imposed laws, that is, to resocialize the offending individual for their return to society.
It is also worth conceptualizing it, as García-Pablos does, from a dynamic and sociological perspective, as one of the instruments of formal social control through which the State, through a certain normative system (criminal laws), punishes with negative sanctions of particular severity. (penalties and other similar consequences) the deviant conduct that is most harmful to coexistence, ensuring the necessary social discipline and correct socialization of group members.
The scope of criminal law is to understand criminal science, systematize positive law.
It is also true that, through the expression criminal law, the science of criminal law is designated. In this sense, knowledge or criminal science has as its object the knowledge, interpretation, systematization and criticism of positive law.
Violence is not surprising in criminal law, it is foreseen, and so it is in the contract of violence.
Violence is, therefore, not strange or extrinsic to law, but inherent to the idea and reality of law itself. Criminal law is violence in the service of controlling violence.
Criminal law provides broad provisions, covering the prediction of the fact, conduct, penalty and consequences.
Here are some definitions: Franz von Liszt: criminal law is the set of prescriptions issued by the State that link crime, as fact, to punishment, as consequence (Treaty of German criminal law, trans. José Hygino Duarte Pereira. Rio de Janeiro: Briguiet, 1899, v. 1, p. 1).
Criminal law is the State’s power to punish, as well as the consequences.
Mezger: criminal law is the exercise of the State’s punitive power, which connects the crime, as a presupposition, and the penalty, as a legal consequence (Tratado de derecho penal, 2. ed. Madrid, 1946, v. 1, p. 27 -28).
Welzel: criminal law is “the part of the legal system that determines the characteristics of the criminal action and imposes penalties or security measures on it (Derecho penal alemán, trans. Bustos e Pérez. Santiago: Ed. Jurídica de Chile, 1993, p. 1).
Not only penalty, but also security measures. Juarez Cirino: criminal law is the sector of the legal system that defines crimes, imposes penalties and provides security measures applicable to perpetrators of incriminated conduct (Penal Law. General Part. Rio de Janeiro: Lumen Juris, 2006, p. 3).
There are authors who understand that, through interpretations of judges, in a form of guidance, and their free conviction, will reduce the State’s punitive power.
Zaffaroni/Batista: criminal law is the branch of legal knowledge that, through the interpretation of criminal laws, proposes to judges a guiding system for decisions that contains and reduces punitive power, to boost the progress of the constitutional rule of law (Criminal Law Brazilian – I. Rio de Janeiro: Revan, 2003, p. 40).
According to the author, Law and force should not be understood as absolutely antagonistic, he describes:
«Jacques Derrida wrote: “…such a situation is, in fact, the only one that allows us to think about the homogeneity of law and violence, violence as the exercise of law and law as the exercise of violence. Violence is not external to the order of right. It does not essentially consist of exercising one’s power or brutal force to obtain this or that result, but in threatening or destroying a certain order of law, and precisely, in this case, the order of state law that had to grant that right violence, for example, the right to strike.” Force of Law. Martins Sources: S. Paulo, 2007, p. 81. Kelsen also observed «Law and force should not be understood as absolutely antagonistic. Law is an organization of force. Because Law binds certain conditions for the use of force in relations between men, authorizing the use of force only by certain individuals and under certain circumstances. The Law authorizes certain conduct that, under all other circumstances, must be considered ‘prohibited’; being considered prohibited means being itself condition for such a coercive act to act as a sanction. The individual who, authorized by the legal order, applies the coercive measure (the sanction) acts as an agent of that order or – which is equivalent to saying the same – as an organ of the community, constituted by it. Only this individual, only the organ of the community, is authorized to employ force. Therefore, it can be said that the Law makes the use of force a monopoly of the community. And, precisely by doing so, the Law pacifies the community.” General theory of law and the state. Translation: Luíz Carlos Borges. 4th Ed. São Paulo: Martins Fotnes, 2005, p. 30.»
Function of criminal law
Symbolic function of Criminal Law. The doctrine usually points out three legitimate functions exercised by Criminal Law, which are: Restricting conduct that offends or exposes to danger, in a serious, intolerant and transcendental way, relevant legal assets. Protect the individual from the social reactions that crime triggers.
The function of Criminal Law, its mission within the Social Democratic State of Law, Material, enshrined in the Constitutional Charter of 1988, Criminal Law, in this context, has certain functions. The first of these is the indispensable protection of essential legal assets, legitimately and effectively protecting the fundamental legal assets of the individual and society.
Criminal Law, initially, which is in terms of the incriminating criminal type, exercises the function of protecting essential legal assets, protecting, for example, life by establishing classifications whose rules prohibit attacks against this fundamental asset. In cases such as, for example, self-defense, where the victim in a counterattack injures or kills his attacker, the law will not protect him, despite his life being an essential legal-criminal asset. The function of Criminal Law must be added to the word indispensable, as Fernando Fernandes expressly uses it. (https://www.pauloqueiroz.net/conceito-de-direito-penal/ accessed on 04/17/2020)
4. Brief summary:
Criminal Norm Theory; Crime Theory. Concept and classification of crimes. Application of criminal law in time and space
Law can be defined as a complex of legal norms that govern the lives of men in society, always bringing a sanction for non-compliance with these norms.
Such sanctions bring different responses, such as a fine, nullity of the legal act, dismissal of the offending employee, compensation for damages, among other hypotheses.
In the scope of Criminal Law, failure to comply with the rules set out in the Penal Code basically leads to three sanctions: Sentence of detention or imprisonment; Security measure; or Fine.
Criminal law is, therefore, the complex of positive norms that regulate the matter of crimes, penalties, fines and security measures.
Its basic functions are: a) Protection of legal assets. Legal assets are the values or interests of the individual or community, recognized by Law. The protection of legal assets occurs through collective notice (general prevention), or through ethical commitments assumed by citizens to live in society;
b) Maintenance of social peace. Social peace is that preserved by the State in order to guarantee security, equality and harmony among the population. Such social peace must be present in everyone’s lives.
The nature of Criminal Law can be assessed when assessing human conduct. Such action can be assessed from two aspects: – Harmfulness of the result; and – Reprehensibility of the action.
It is important to highlight that Criminal Law is the last ratio of Law, which means that this branch must always be the last to be applied to the case.
5. Features of criminal law
Branch of Public Law: given that the rules of Criminal Law are unavailable, mandatory, and there is no possibility of transaction;
Criminal sciences: as it has its own autonomy and principles;
Cultural science: it is a science of Duty to Be, that is, it submits to human laws and not the laws of physics, for example. Its rules are based on social rules in accordance with social dynamism;
Normative science: in Criminal Law there is no importance of studying the philosophical or sociological issues that led to the commission of a crime. For this branch of Law, only the existence or not of a norm in which conduct is appropriate is relevant;
Finalistic science: its objective is to reveal the content of legal norms by analyzing the agent’s purpose in practicing such conduct;
Fragmentary: because crime only affects serious facts and the most important values in social life.
According to renowned scholar Fernando Capez, in his work “Curso de Direito Penal”:
”Criminal Law is the segment of the legal system that has the function of selecting the most serious and harmful human behaviors to the community, capable of…