We explain what criminal law is, its characteristics and the elements that make it up. Objective and subjective criminal law.
What is criminal law?
Criminal law is understood to be the branch of law that is responsible for regulating and conceiving punitive capabilities that is, punishment, which the State reserves for those who violate the rules of coexistence or conduct, always based on a principle of proportionality and impartiality.
The criminal law includes the creation and study of criminal laws those that contemplate precisely what is and what is not a crime, as well as the support and guidance of judicial decisions on the matter. But not only that, but also the mechanisms with which society protects itself and the philosophy that exists behind punishment and/or confinement.
This legal branch belongs to positive law, that is, that contemplated in ordinances, codes and laws written and assigned by people. Criminal matters have to do with the decision to distance an individual from the rest of society for a time considering him dangerous or incapable of conforming to the rules, or providing a rehabilitative framework for him to do so.
The only possible source of criminal law is the law itself, contemplated in the penal codes and criminal laws in force, since neither custom nor nature define what is punishable or not, only the laws of human beings.
The criminal law It is as old as life in society although it initially existed in tribal revenge laws such as the Law of Retaliation.
Thanks to Roman Law, it emerged in Europe as a legal institution, although it was later replaced by the inquisitorial will of the Catholic Church, and re-emerged in the Modern Age with the laws of the Republic.
See also: Legality
Features of criminal law
Criminal law is governed by the following principles:
- The presumption of innocence This principle dictates that every citizen must be considered innocent until the necessary evidence and deductions are available to reliably prove his guilt. We are all innocent until proven guilty.
- Equality before the law This principle is key to the rule of law, and means that every citizen must respond equally before the law, which is equivalent to saying that all crimes of all citizens, regardless of their class, religion, sex, etc., They must be judged on the same scale and punished equally.
- The proportionality of the punishment This principle establishes that the punishment imposed by the State must be proportional to the crime committed, so that more serious crimes receive a greater penalty than minor crimes.
- The legality of the right This principle establishes that the actions of the State in the punishment of crimes committed cannot in turn be crimes, that is, that the punishment administered cannot in turn constitute a violation of the law, or the State would be a criminal State. also worthy of punishment.
- Respect for due process Together with procedural law, criminal law ensures that every accused receives the same and minimal opportunities to defend himself, to give his version of the facts and to be tried individually for each crime he is accused of.
- Human rights. Finally, human rights are minimum rights that every human being deserves, regardless of their conditions, origin or degree of guilt, even if they did not respect the rights of another and therefore must be punished.
Elements of criminal law
Every act of interest to criminal law consists of the following elements:
- A criminal. Who is accused of having broken the law and who has been arrested for it.
- A crime. A concrete breach of the law attributable to a criminal and of which there is evidence, evidence and versions.
- A shame. A punishment or sanction proportional to the seriousness of the crime committed and administered by the forces of the State.
- A judge A citizen expert in law who supervises the operation of the trial and finally rules the decision made after hearing the parties.
Objective and subjective criminal law
There are two perspectives of criminal law, two ways of seeing its mission: objective and subjective criminal law.
When we talk about the first we refer to it as normative, as legal system by which a given society decides to govern and evaluate itself.
When we talk about subjective criminal law, on the other hand, we are referring to to the issue of penalties or punishments imposed by the State that is, to its punishing and exemplary property, that is, to its capacity to decide on punishment.
Branches of criminal law
Criminal law is considered to have the following branches:
- Material or noun. It deals with everything related to the body of legal norms based on which a crime is identified.
- Procedural or adjective. It is the dynamic part of the criminal offense, as it is responsible for proving the crime and making judicial decisions to determine the penalty.
- Executive or penitentiary The one who is responsible for carrying out the penalty or punishment and ensuring that it is done correctly.
