We explain what criminal law is, its characteristics and the elements that compose it. Objective and subjective criminal law.
What is criminal law?
Criminal law is understood as the branch of law that is responsible for regulating and conceiving punitive abilities , that is, punishment, which the State reserves for those who violate the rules of coexistence or conduct, always from the beginning 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 accompaniment and orientation of judicial decisions in the matter. But not only that, but also of the mechanisms with which society protects itself and the philosophy that exists behind punishment and / or seclusion.
This legal branch belongs to the positive law , that is, the one contemplated in ordinances, codes and laws written and assigned by the people. Criminal matters have to do with the decision to move an individual away from the rest of society for a while , considering it dangerous or unable to comply with the rules, or providing a rehabilitation framework to do so.
The only possible source of criminal law is the law itself, contemplated in the criminal codes and criminal laws in force, since neither custom nor nature defines what is punishable or not, only the laws of human beings.
Criminal law is as old as life in society , although it initially existed in tribal revenge laws such as the Talion Law.
Thanks to Roman law, it emerges in Europe as a legal institution, although it was later replaced by the inquisitorial will of the Catholic Church, and resurfaced 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 they have the necessary evidence and deductions to 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 respond in equal terms to the law, which amounts to saying that all crimes of all citizens, regardless of 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 given by the State must be proportional to the crime committed, so that more serious crimes receive a larger penalty than minor crimes.
- The legality of the right . This principle establishes that the actions of the State in the sanction of the crimes committed may not be crimes, that is, that the punishment given may not 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 the procedural law, the criminal law is responsible for 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 that is charged.
- Human rights . Finally, human rights are minimum rights that every human being deserves , regardless of their conditions, provenance or degree of guilt, even if he did not respect the rights of another and therefore must be punished.
Elements of criminal law
Every act of interest for criminal law consists of the following elements:
- A criminal . Who is accused of breaking the law and who has been arrested for it.
- A crime . A concrete breakdown of the law attributable to a criminal and of which there is evidence, evidence and versions.
- Shame . A punishment or sanction proportional to the seriousness of the crime committed and imparted by the State forces themselves.
- A judge . A citizen expert in laws that supervises the operation of the trial and finally decides the decision taken after hearing the parties.
Objective and subjective criminal law
There are two perspectives of criminal law, two ways of looking at its mission : objective and subjective criminal law.
When we talk about the first one, we refer to it as normative, as a legal system by which a given society decides to be governed and evaluated .
When we talk about subjective criminal law, on the other hand, we refer to the matter of the penalties or punishments imposed by the State , that is, to the punishing and exemplary property of the State, that is, to its ability 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 which a crime is identified.
- Procedural or adjective . It is the dynamic part of the criminal offense, as it is responsible for the verification of the crime and judicial decisions to determine the penalty.
- Executive or penitentiary . He who deals with the execution of the penalty or punishment and ensure that it is done correctly.