The object of criminal law Abstract: In current criminal law doctrine, the prevailing opinion is that criminal law regulates both the criminal offence and the punishment. Moreover, this opinion coexists with another, according to which criminal law regulates a subjective right of the state to punish and therefore generates a “legal relationship” between the state and the offender. Such opinions are, however, fallacious and, in order to clarify the matter, the author provides an insight through the philosophy of law, helping her highlight several aspects, such as: the fact that the sanction is not a juridical (legal) norm element; the fact that any juridical (legal) norm comprises a precept and a hypothesis; the fact that two vast categories of juridical (legal) norms can be distinguished, namely “determining norms”, which regulate obligations, and “sanctioning norms” (coercive ones), regulating sanctions etc. Next, by analysing the criminal provisions, from this perspective, the author formulates five conclusions, as follows: the fact that there is no “subjective right” to punishment; that fact that a criminal offence is not “regulated” (legislated), but forbidden by the law; the fact that the object of criminal law has to be determined starting from general criminal norms instead of incriminating norms; the fact that criminal law is self-regulating (it sets forth the scope and content of criminal laws); the fact that the punishment is the fundamental notion in any criminal law

Guiu, Mioara-Ketty

The object of criminal law Abstract: In current criminal law doctrine, the prevailing opinion is that criminal law regulates both the criminal offence and the punishment. Moreover, this opinion coexists with another, according to which criminal law regulates a subjective right of the state to punish and therefore generates a “legal relationship” between the state and the offender. Such opinions are, however, fallacious and, in order to clarify the matter, the author provides an insight through the philosophy of law, helping her highlight several aspects, such as: the fact that the sanction is not a juridical (legal) norm element; the fact that any juridical (legal) norm comprises a precept and a hypothesis; the fact that two vast categories of juridical (legal) norms can be distinguished, namely “determining norms”, which regulate obligations, and “sanctioning norms” (coercive ones), regulating sanctions etc. Next, by analysing the criminal provisions, from this perspective, the author formulates five conclusions, as follows: the fact that there is no “subjective right” to punishment; that fact that a criminal offence is not “regulated” (legislated), but forbidden by the law; the fact that the object of criminal law has to be determined starting from general criminal norms instead of incriminating norms; the fact that criminal law is self-regulating (it sets forth the scope and content of criminal laws); the fact that the punishment is the fundamental notion in any criminal law

Mioara-Ketty Guiu ()
Additional contact information
Mioara-Ketty Guiu: associate scientific researcher of the “Acad. Andrei Radulescu” Legal Research Institute of the Romanian Academy, Romania

Juridical Tribune - Review of Comparative and International Law, 2019, vol. 9, issue Special, 47-59

Keywords: incrimination; penalty; punishment; criminal law. (search for similar items in EconPapers)
JEL-codes: K14 (search for similar items in EconPapers)
Date: 2019
References: View complete reference list from CitEc
Citations:

Downloads: (external link)
http://tribunajuridica.eu/arhiva/An9vS/4.%20Mioara%20Kety%20Guiu.pdf (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:asr:journl:v:9:y:2019:i:special:p:47-59

Access Statistics for this article

More articles in Juridical Tribune - Review of Comparative and International Law from Bucharest Academy of Economic Studies Contact information at EDIRC.
Bibliographic data for series maintained by Catalin-Silviu Sararu ().