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 in charge of regulating and designing punitive capacities, 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.
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 monitoring and guidance of judicial decisions on the matter. But not only that, but also the mechanisms with which society protects itself and the philosophy behind punishment and / or imprisonment.
This legal branch belongs to positive law, that is, to that contemplated in ordinances, codes and laws written and assigned by people. Criminal matters they have to do with the decision to separate an individual from the rest of society for a time, considering it dangerous or incapable of conforming to the rules, or providing a rehabilitative framework for it to do so.
The only possible source of criminal law is the law itself, contemplated in criminal codes and criminal laws in force, since neither custom nor nature define what is punishable or not, only the laws of human beings.
Criminal law it’s as old as life in society, although it existed initially in tribal revenge laws such as the Talion Law.
Thanks to Roman Law, it emerged in Europe as a legal institution, despite the fact that 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.
Characteristics 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 proofs and deductions are obtained to reliably prove their guilt. We are all innocent until proven otherwise.
- Equality before the law. This principle is key to the rule of law, and it means that every citizen must answer in equal terms before the law, which is to say that all crimes of all citizens, regardless of their class, religion, sex, etc., they must be judged with the same scale and punished the same.
- The proportionality of the punishment. This principle establishes that the punishment meted out by the State must be proportional to the crime committed, so that more serious crimes receive a greater sanction than minor crimes.
- The legality of the law. This principle establishes that the actions of the State in the sanction of the crimes committed cannot in turn be crimes, that is, that the punishment given 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 all accused receive the same and minimal opportunities to defend themselves, to give their version of the facts and to be tried individually for each crime charged.
- Human rights. Finally, human rights are minimum rights that every human being deserves, regardless of their conditions, origin or degree of guilt, even if he did not respect the rights of another and for this he should 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 imparted by the forces of the State themselves.
- A judge. A citizen expert in laws who supervises the operation of the trial and finally dictates the decision taken after hearing the parties.
Objective and subjective criminal law
There are two perspectives on criminal law, two ways of looking at its mission: objective and subjective criminal law.
When we speak of the first we refer to it as normative, as legal order by which a given company decides to be governed and evaluated.
When we talk about subjective criminal law, instead, we mean to the matter of penalties or punishments imposed by the State, that is, to the punishing and exemplary property of it, that is, to its capacity to decide on the 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 on the basis of which a crime is identified.
- Procedural or adjective. It is the dynamic part of the criminal offense, as it is in charge of verifying the crime and making judicial decisions to determine the penalty.
- Executive or prison. One who is in charge of executing the penalty or punishment and ensuring that it is done correctly.