Nature and characteristics of the criminal law
The criminal law pertains to the area of public law. The legal relationship between the State and the accused is a hierarchical relationship in which the State accuses and the State judges the conduct. In addition, the justice that protects criminal processes is distributive understood as such that regulates the relationships between social structures (State) and their governed. We explain what is the criminal law and its main characteristics. Why it is said to be a regulator of behaviors, and examples.
What is Criminal Law?
The criminal law is a branch of internal public law . It can be considered a scientific discipline since it is a systematic set of principles. Refers to: crimes, penalties, security measures.
What is the purpose of criminal law? The objective is the creation of social order and its conservation, through the imposition of sanctions to avoid behaviors that are considered dangerous (crimes).
A means of social control is defined as a set of cultural models and symbols that are determined and applied through a set of acts. Criminal law is one of the means of control available to the State to overcome tensions and social conflicts.
Although criminal law may seem a modern concept, various societies and civilizations throughout history have had similar rules to those established by criminal law. The Law of the Taliban (the eye by eye, tooth by tooth) or the Roman right are some examples of the evolution that the criminal law has suffered throughout history.
Characteristics of Criminal Law
The sanction is not imposed by responding to the interest of the person harmed by the crime, but by responding to the interest of the community. For that reason, punishment can only be imposed by the State, that is, criminal law is a means of control monopolized by the State . It does not deal with the relationship between individuals but with the relationship between the sovereign State and individuals.
It has three aspects
Objective: As a set of legal-criminal norms. They establish a civil responsibility derived from the crime. Therefore, the application of criminal law presupposes crime as a fact, whose legitimate consequence is the penalty or the security measure.
Subjective: As the right of the State to sanction, Us Nintendo. The power of the State to create and apply sanctions to those who violate these criminal-legal norms . This power is exercised through Primary Decriminalization and Secondary Decriminalization.
Scientist: As a doctrine, the Science of Criminal Law is the discipline that interprets and studies, in a systematic way, the objective Criminal Law in force.
Legal assets are created by other legal systems than Criminal Law, but the latter is responsible for protecting these legal systems through the imposition of penalties. That is why it is called accessory and secondary in relation to the branches of law that create legal rights.
It does not provide for state intervention in all situations, but specifies which are the penalized behaviors (those that are more dangerous for the goods that it protects). That is why Criminal Law is considered valuable , because in selecting the most dangerous behaviors, it gives importance to its harmful nature.
Only deals with the actions of people who exceed their thinking, those that manifest themselves outside the person. That is to say that Criminal Law does not deal with the field of thought.
What is punished are acts or fiats accomplish. Only when an action has been committed can be punished and you can never apply the criminal law to a person for the ideas you have.
The criminal law functions as the last legal instance that sanctions a conduct, that is to say that its intervention becomes necessary to penalize the most dangerous conducts, before which no other State intervention is effective.
The conception of what is a crime depends on each culture, that is why Criminal Law does not sanction the same actions in all countries, and it is even modified over time in the same State.
A rule determines permitted and prohibited behaviors. By pointing out the behaviors that will be sanctioned, Criminal Law is normative since it defines what is prohibited .
It has a specific objective, a collective purpose (it may be to maintain social order, ensure the welfare of the community, guarantee justice, etc.)
The main objective of criminal law is to protect society from behaviors that may harm it. To this end, punishments imposed on anyone who violates the laws are used. In addition, these punishments also have a preventive function, since although they can not revoke the actions already committed, they can serve to prevent possible future infractions.
It only punishes the people who committed the infraction, that is, the penalty can not be extended to their descendants or to any other person. In addition, the person responsible can not be replaced by another person in compliance with the penalty.
Criminal law is based on the principle of proportionality, that is, the sanctions or punishments applied must be consistent with the crimes committed. In addition, the principle of minimum intervention is applied in a similar way, which says that in order to apply a penalty, the offense or offense committed must be serious and the less severe penalty that is appropriate to the crime must always be applied.
Background of Criminal Law
The conquest of Mexico put two races in contact, or, if you wish, two groups of races, so distant in degrees of culture and civilization that it can not be surprising that the fusion of both elements, of which the Spaniard had to impose his language, his ideas, his beliefs, his customs and his laws on the indigenous, placing him in an undoubted, though not strictly juridical, social condition of domination and inferiority close to serfdom, notwithstanding his religious and protective spirit . The Spanish was the master; the Indian was the servant, even though in written legislation he was declared a free man and the way of his emancipation and social elevation was left open through work, study and virtue.
In the domination of Spain by the Romans first and then by the Goths, conquered races and conquering races tended constantly to merge into one, both by material union and by mutual communication of uses, languages, religion, customs and law. That phenomenon did not occur in Mexico.
The state of semi-civilization of the Mexicans made it inevitable that their ideas, both social and religious, and their incipient and rudimentary legal culture, should give way without resistance, at least ostensible, to the Spanish culture, of indisputable superiority under all aspects.
Organization of criminal law
As it has happened in most aspects of social organization, for the criminal law to become what we know today it was necessary that there was a rather slow process, through which different methodologies and ideas were put to the test and he went looking for the form in which it would be finally constituted. In this process, several stages can be pointed out,
Primitive stage: In this period there were no clear laws, but a series of prohibitions derived from firm religious beliefs that imposed harsh punishments on those who dared to violate them, these mandates were called taboo .
Criminal law: There was another term that was that of revenge, which allowed those who suffered any harm on the part of another group, will take justice by their hand punishing their aggressors with a greater evil than received . There were no limits, it was the victims who put them. The successive execution of the revenge between individuals from different sides was what led repeatedly to the war between them.
Stage of the Law of Talon : In this period a limit to the mentioned revenges was created which was fixed by the Tables of the Law of Moises ; where it is expressed that the penalty must be equal in magnitude to the damage suffered.
Emergence of political justice: With the birth of the Roman Criminal Law , justice began to make sense. From this way, the differentiation between public and private crimes arises ; the first were those that affected public order and the second were of a personal nature between two individuals or families. In each case, a different kind of punishment was chosen, still based on the law of retaliation, that is, punishment was imposed based on the damage caused by the individual.
From this moment, justice was slowly consolidated as we know it today ; first, the steps to be followed were instituted before a criminal proceeding (accusation, providing evidence of the crime and sentence) and later the difference between fraudulent and guilty crime was established , developing different theories and doctrines that allowed the correct execution of the sentences.
Finally, criminal Law has a character of ultimo ratio. In other words, it is the last legal instance to sanction a conduct. The law, in general, has the purpose of determining which behaviors are socially accepted and the adapted sanctions. For example, legal property is protected by various branches of law. Constitutional Law protects it as a constitutional guarantee and protects it with constitutional resources if it is impaired. The Civil Law regulates its acquisition, its possession and sanctions the acts that attempt against it, but in Criminal Law it selects the most inappropriate behaviors for social coexistence and penalizes said behaviors. For example, if an alien thing is sold, the civil penalty will be to pay back the price paid, but if it is sale is done with the intention of deceiving another person we are in the presence of a scam and that behavior for having that characteristic of adapted solemnly is penalized. The ultimo ratio feature has a functionality for the legislator which should only specify an action when the other sanctions imposed by the legal system have not been necessary in the elimination or mitigation of said behavior.