LESSONS

L.14 - Punishability

STRUCTURE

I. Injuriousness and punishability: General considerations; the result of the offence.
II. Personal grounds for exclusion of punishment.
III. Objective conditions of punishability.
IV. Preconditions for the right to proceed.

And now... how to punish him?

The theory of crime allows us to check whether the elements on which criminal liability is based are present. It is not a matter of mere psychic data , but of an order of operations of imputation of responsibility and measurement of what is imputed according to a rule or rule. Thus, we have analysed the event and established that it was not a mere natural process(L.1), but the product of a human act. It is this human act that is then analysed in its objective and subjective facets(L.2 and L.3), even though we know that it is less easy to distinguish between goal and the subjective than is sometimes expressed in ordinary language. Two groups of cases emerged in which the subjective facet did not coincide with the objective facet, the so-called incongruent types(L.4 and L.5).

The above refers to prohibitive rules, which give rise to types of a commissive nature. The same applies mutatis mutandis to prescriptive rules, which give rise to omissive types. These have certain peculiarities, which merit a separate study(L.6). And also to the optional rules, which give rise to types of (causes of) justification, such as self-defence and state of necessity, among others (L.7 and L.8).

Once the analysis of the above has been completed, we will be able to state whether the act is unlawful (or, on the contrary, whether it is justified, because a cause of justification exists). It is then time to attribute or impute the act to the agent as guilty(L.9, L.10 and L.11). We will then affirm that agent A is guilty of act h (which is unlawful). Note that it is the acts that are qualified as unlawful or justified, while it is the agent who is considered to be guilty or not.
Once it has been affirmed that the agent is guilty, we are in a position to conclude. The theory of crime has enabled us to affirm whether the agent is guilty of his unlawful act. It will then be necessary to impose the consequence that the criminal law had defined for these cases: the penalty (if the agent is not guilty, a security measure will have to be imposed, if necessary). At final, the theory of crime has enabled us to decide whether the criminal consequences of human conduct should be applied.

However, with the theory of crime described so far, not all the categories that condition the imposition of a penalty are reviewed. There are situations in which the legislator has considered it preferable not to impose a penalty for reasons other than unlawfulness and culpability.

These reasons, after unlawfulness and culpability, include a wide variety of assumptions. It is advisable to have a classification that allows factors linked to the subsequent conduct of the subject to be taken into account, as well as the criminal relevance of the criminal offence itself (which would extend its effects not only to those subjects in whom the factor is present). Based on the criminal offence, on the basis of which criminal liability is determined, other personal circumstances have to be taken into account. Non-personal circumstances can also be taken into account; and, furthermore, the extension of their effects beyond the perpetrator can be reasoned, i.e. affecting the criminal relevance of the act. The conduct or circumstances, on the one hand, and the relevance or effects, on the other, should be taken into account. A classification combining these two compatible criteria can therefore be made. The first criterion is the factor on which impunity is based: it may be a conduct of the subject (formal) or a circumstance unrelated to it (material). The second criterion is based on the criminal relevance of the offence: it can be limited to the subject concerned (subjective) or apply to all those involved (objective). Let us look at the following table:

In other words: the categories of the theory of crime analysed so far are a necessary, but not sufficient condition for criminal punishment. They are not a sufficient condition, because other, very varied elements must also be present, as can be seen in this table. Consider C.141.

"The Law of the XII Tables seems to have distinguished between overt and non-overt robbery, punishing them in a very different way. The perpetrator of overt robbery, caught in the same house, or when trying to flee with his booty, was condemned to death as a slave, and being free he remained the slave of the robbed. The perpetrator of unmanifest robbery, caught in other circumstances, was only obliged to return double the amount stolen" (H.S. MAINE, El Derecho antiguo, Spanish translation, Guerra, Madrid, 1893, p 109).