The need to recognize the reality of the criminalization process imposes a major change in regard to the conception of guilt, where the concepts of reproach, motivation and merit must be put aside, paying attention to the principle of rationality that governs in the matter, and respect for the conception of the person within a framework of criminal law with limitations.
The individualization and personalization of the penalty as a consequence of the commission of a crime has always been a controversial issue, although it is less controversial in doctrine in relation to the categories that make up the theory of crime. The difficulty of finding criteria for this is due, among other reasons, to how difficult it is to rationalize discursively something that has been linked more to the materiality of power than to an instrument that is the product of social consensus, which is not known in depth.
In this thought, we will take as a starting point for this work the position held by Zaffaroni, insofar as it postulates an agnostic position regarding punishment, to which no known content is assigned, or at least none legitimate in a State of Law, and therefore not susceptible to theoretical validation by legal doctrine. From this point of view, criminal law (which is a branch of legal knowledge and therefore differs from the set of rules) has the function of providing a rational discourse directed to the operators of judicial agencies that serves to contain and reduce the violence of the punitive power, which is always irrational and selective.
We maintain, then, that it is not possible to find a just penalty, since the imposition of suffering on a person by the State can be conceived only as a political manifestation, that is, a mere act of power. That is why from criminal law it is only feasible to provide elements to reduce the harmful effects of the exercise of irrational power, which cannot be completely eliminated due to the limited power of legal agencies.
On this basis, we will try to address the controversial field of sentencing, focusing on guilt as the main element in this task. Thus, we will seek to discuss the parameters to graduate the penalty to be imposed in each specific case as a final filter, when the punitive power has already gone through all the taxes imposed by the theory of crime, succinctly mentioning some opinions existing in the current doctrine on the subject of theory of punishment.
From this delegitimizing point of view of the function assigned to the penalty, based on the work of authors who adopt an imperative function of the norms, we will try to reveal the incidence that was provided on the guilt, by the majority doctrine, to concepts such as motivation, merit and reproach.
From the study of German doctrine at present, it can be determined with precision that the adoption of a criterion around the last of the stages of analysis of the theory of crime, is closely related to the purpose assigned to the application of the penalty in the various schemes.
Thus Roxin adheres to a theory of punishment that he himself defines as "unifying." He conceives that at the time of the determination of that, pre-eminence should be given to ideas of general prevention, while at the time of their imposition to the specific case, relevant are the arguments of special prevention, these reasons that lead him to conclude in the need to work with two different ideas of guilt.
For its part, it states that the stratum of the theory of crime under study, within the framework of ideas that it advocates, will be directly related to the realization of a legal-criminal unfair on the part of a subject, even when he, in the case Specifically, the effect of calling the norm could reach it, distinguishing this institute from that of responsibility, which is defined from the preventive need for criminal sanction, which will be deduced from the content of the law, thus concluding, that the last of the concepts mentioned is the result of the sum of guilt and the need for prevention existing in the case.
Roxin indicates that « The concept of guilt has to be configured functionally, as a concept that yields a fruit of regulation, according to certain principles of regulation (in accordance with the requirements of the end of the sentence), for a society with a certain structure. The purpose of the sentence is preventive-general; The aim is to maintain the general recognition of rule «3, emphasizing the German professor that the relationship between the institutes under analysis must also be taken into account when determining, for example, the avoidability of the error, concept dependent on the end of the sentence.
According to what is argued by the aforementioned authors, the notion of normative reproach has to be linked to the purpose given to the penalty, but the problem becomes more complex when it is considered a mere act of power., which is why the classical positions of both absolute and relative theories are left aside, this being the thought of Zaffaroni. As we already anticipated, for this theory the penalty does not have an end in itself (or at least, this is not known or legitimate within the framework of the rule of law). Therefore, guilt will be the main filter to reduce violence that leads to the application of the penalty in the specific case.
From this point of view, the real operation of the penal system cannot be set aside as a starting point for the construction of categories of dogmatic analysis, which is why the selectivity of the control apparatus in criminalization processes, the inability to resolving conflicts, the deteriorating effect on the victims, as well as the enormous dimension of the punitive power network -in all its manifestations-, must necessarily be taken into account. Faced with this situation, the agnostic theory of punishment adopts a notion of guilt that incorporates the factual data of selectivity of the penal system, which was not reached by traditional conceptions on the point (from psychologism to normative reproach), of what is extracted, evidently,that this is the most novel and interesting element that this set of ideas inscribes in the current dogmatic discussion.
From this perspective, the idea is taken from criminology that any punitive system cannot carry out secondary criminalization to the same extent as primary criminalization. In other words, the executive agencies, who are in charge of starting this second stage of criminalization, do not make all the people who carry out behaviors that are normatively described as crimes enter the criminal system, since this is materially impossible (that is, moreover, if it could be implemented, the majority of the population would be subject to the penal system).
Secondary criminalization, then, is intrinsically selective, and this selection is not made according to legal criteria, but according to criminal stereotypes that are being formed in the imaginary of those who make up these agencies. Thus, those who are selected are not selected for the criminal act they have committed, but for responding to the criminal stereotype, which is based on physical, cultural and economic-social traits, with people with fewer resources than the population, and therefore, more vulnerable to the penal system. As a result of the aforementioned selectivity, there is an urgent need for criminal law to limit the punitive power in order to carry out a counter-selectivity, to limit through its system of reducing filters the pernicious effect of criminalization processes, mainly,high school, which does not choose acts, but people.
Said counter selectivity must be constructed from the recognition in the dogmatic treatment of the question of the aforementioned reality data, through the study of the categories that make the vulnerability of the subjects in question to the exercise of the potentia puniendi; that is, from a) vulnerability status (which corresponds to the criminal stereotype, resulting high or low in direct relation to its degree) and b) vulnerability situation (which is the specific position of criminalizing risk in that the individual is located), resulting directly proportional the degree of effort that the subject made to place himself in the situational constellation mentioned in relation to the stereotype that has been imposed on him, these notions that Zaffaroni has developed throughout his work4.
To this limiting and content theory of punitive power, the criticisms that its legitimizing theories can formulate are not likely to cause essential questions, since, based on the guidelines of the former, there is a structural break with the conceptions of the former. preventionism, both from the normative point of view, and from the one related to the admission of the fact of reality that criminal proceedings must -necessarily- recognize and admit. Moreover, although -from this point of view- the intrasystematic logic is still in force, the categories that make up the theory of crime have ceased to be conceived as presuppositions for the determination of the existence of an offense, to become filters for the exercise of crime. potentia puniendi, which in any case is exercised without logic, and irrationally.
In this view of the theory of crime, guilt is conceived as «… the judgment necessary to link the unjust person to its perpetrator in a personalized way and, where appropriate, operate as the main indicator of the maximum magnitude of punitive power that can be exercised about this. This judgment results from the synthesis of a judgment of reproach based on the scope of self-determination of the person at the time of the fact (formulated according to formal elements provided by traditional ethics) with the judgment of reproach for the agent's effort to achieve the a situation of vulnerability in which the penal system has specified its dangerousness, discounting from it the one corresponding to its mere state of vulnerability ”5.
For Zaffaroni, the ethical reproach prior to the agent's effort to place himself in the specific situation of vulnerability, continues to be essential, in order to guarantee respect for the person as such, from its conception by reason of the provisions of art. 1 of the Universal Declaration of Human Rights, so the recognition of the possibility of self-determination is inherent in the person, which should not be confused with the idea of free will.
Moreover, the validity of the principle of rationality as a corollary of the principle of guilt in this stratum of analysis of the theory of crime, makes it possible to recognize the preeminence of a reproach of an ethical nature over that of vulnerability, since otherwise, It would fall into a deep incoherence, since it would be impossible to measure the effort due to the vulnerability of those people who by definition have acted in such an extreme situation of vulnerability that it cannot be measured because it is part of their situational essence, as well as because it would be required of them refrain from risky situations to those who are most exposed to them.
However, the reproach made in guilt, cannot be understood, under any point of view, as legitimating the punitive power that is enabled in its function, but, on the contrary, it must be opposed to it, as an insurmountable fence or limit. to its selective irrationality and its corresponding ethical defect. From this it also follows that the concept of ethics with which one works in this conception of the phenomenon of reproach differs from that held by the classics (from Aristotle to Hegel, passing through Saint Thomas Aquinas and Emmanuel Kant) 6, since that no limiting criterion can be extracted from it, since the requirement described in the paragraphs above regarding the self-determination of the subject who will be reproached for the unjust later,It cannot deny the fact that criminalization only falls on some individuals previously selected because of their greater vulnerability.
In this scheme, in an attempt to conceive of guilt as the personalized link of the unjust with the perpetrator that is projected from the theory of crime as an indicator of the maximum amount of punitive power that can be tolerated in the specific case, Zaffaroni argues, it should prevent that That is exerted in a magnitude that exceeds the degree of effort that the subject has made to place himself in the concrete situation of vulnerability, turning the effort mentioned into the very essence of a reducing guilt, which preserves in its synthesis the ethical reproach, thus translating to normative guilt as "… the effort (ethical and legitimate) of criminal legal knowledge to reduce (as far as its power reaches) the result of formally ethical guilt".
We maintain that any preventive conception around the theory of punishment has an intrinsic relationship with the imperatives in the matter of theory of norms, which is why criticisms that focus on the former affect the latter in the same way., thus questioning criteria such as merit, motivation and reproach, for example.
From the point of view of an agnostic theory of punishment, the real existence of the norm, or considering that it determines an unjust one, cannot be sustained, since otherwise the possibility of conceiving from a norm would be enabled real disappointment, the necessary foundation for the legitimation of the sentence, from a preventive angle. The part of the doctrine that names the existing legislation on criminal matters as a norm, usually distinguishes between primary (those destined by the sovereign to the subjects) and secondary (directed to the State organs in charge of imposing the penalty in case of transgression of those mentioned above).
Sobre las normas primarias mentadas, se construyó la teoría de los imperativos, que proviene de Austin y fue corregida por Thon. El primero de los autores, ponía el acento en la necesidad de la coacción asociada a la idea de imperativo, en tanto que al segundo no le interesaba tanto la referencia a la coacción, sino que más bien daba énfasis a la función motivadora de aquella. Para Thon, debido a que sólo existen mandatos y prohibiciones (versión monista de la teoría), no habría en su esquema lugar para los permisos, con lo cual se reconoce la indiferencia entre tipicidad y antijuridicidad, con la consecuente admisión de la teoría de los elementos negativos del tipo.
For Binding, unlike the two previous authors, the norms are not part of criminal law, but he aimed to find them in the rest of the legal system, the basis on which he finds the fragmentary and sanctioning nature of criminal law. Other authors, for their part, tried to locate them as norms of culture (Mayer), while some today seek their essence in the violation of duties derived from social roles (Jakobs). Continuing with the ideas that the aforementioned author advocates, it must be stated that The Social Adequacy of Behavior has never ceased to be a highly criticized institute (from its original exposition by Welzel, to the current one, through Jakobs), because a distinction cannot be avoided between the individuals who participate in the definition of what is socially appropriate, and those who cannot.In this sense, a limiting theory must only establish its dividing line between the amount of irrationality tolerable from the point of view of violation of people's rights, and not with the contradiction of human actions with the notion of reason of State. So, understanding conduct as a violation of a determination rule is a false assumption, for two central issues.
On the one hand, the equivocation of preventive discourses, empirically demonstrable, which in the face of factual failure continues to be sustained from a symbolic point of view as Cobo del Rosal says, finding no other support than the mere exercise of irrational power by the State. On the other hand, we find the selectivity of the penal system. This fact of reality is another of the central arguments that puts the rationality of preventive theories in crisis, since the paradigm that holds that criminal sanction is an instrument that is imposed in an unfailing way against conduct contrary to duty, and thus it motivates the abstention (of that individual in the future, or of the rest of the community) from such actions, it does not allow to explain the real dynamics of the system,that only unloads its criminalizing fury on certain people in certain situations, regardless of the behavior they carry out and the "imperative norm" that their actions violate.
Beyond this picture of the situation, it is valid to maintain that all these positions are susceptible to receiving the same criticism. That is, all of them have an ideal perspective on the rules, because they assign a real character to a mere methodological resource, thus confusing the form of knowledge with the object to be known.
That is, from the content of the rules, it cannot be concluded that they contain imperatives in the form of prohibitions or mandates, which make people refrain or force themselves to perform certain behaviors, but that, in reality, and as stated in the previous paragraphs, the simple work of the legislator -whose rationality cannot be affirmed- selecting behaviors that later may -or not- be criminalized by the rest of the agencies that work in the penal system, is the very essence of the normative complex in question. Therefore, one of the main presuppositions of the theory of imperatives (the preventive purpose of the penalty, and the consequent motivating effect of the norm) yields to the oppositions that a Criminal Law containing the exercise of punitive power carries out,from the recognition of the same data of criminalizing selectivity. On the other hand, we deny the existence of a norm placed before the type, neither in the law nor in the culture, but that this is a simple deduction that is made from the same criminal types.
All the existing discussions on the subject of the last stratum of crime theory, such as its direct relationship with the determination of the penalty in the specific case, the need to work with a different guilt -or not- in this field of knowledge, have These have been problematic issues that dogmatics has not yet been able to solve in a definitive way, but it is a central point to be elucidated. In Zaffaroni's work, an attempt is made to provide a common thread for the appropriate response, which we will try to develop here, indicating, first of all, that guilt for the act must be the maximum limit of the penalty, while the measure of the same It must be determined from the individual's personal effort to reach the specific situation of vulnerability,emphasizing that the synthesis of both expressions is normative guilt that is analyzed as a category of crime theory - and not a different one.
Starting from this scheme, it clearly emerges that on the occasion of quantifying the penalty, the crime will no longer be conceived as a static entity (almost a photograph of the event in question detained in the typicity), to be conceived as dynamic, which is important for recognition of its social nature. Then, the theory of punitive responsibility will take charge of resuming this dynamic to reduce the irrationality of the potentia puniendi to the bare minimum. It is in this scheme where crime is projected from the dynamic, as a true social conflict.
Given that the difference between the theory of crime and punitive responsibility, as they conceive the fact as static or dynamic -respectively-, is only one of perspective, this indicates, above all, that the reducers that have to operate in the field action of one or the other must be the same. However, it follows from this that the measure of the penalty is guilt (the same as the crime, although in a dynamic perspective), while guilt for the act will indicate the maximum possible reproach, which, obviously, must be discounted the state of vulnerability of the individual in question, in order to avoid, at least, such a direct contradiction with ethics.
In this sense, Zaffaroni follows a structure similar to that of preventive authors, in that it differentiates the measure of the penalty and its limit, although with a diametrically different content from that used by them. Those who assign a deterrent function to the penalty understand that although the measure of the penalty is given by this preventive function, it cannot be exercised unlimitedly, but must be governed by the idea of retribution. In this way, they enter into an insurmountable contradiction: if retribution does not dissuade, the penalty does not fulfill that function; In order to comply with it in all cases, it must exceed that limit, or it must distinguish between the healthy part of the population (who is intimidated by retributive punishment) and the wicked who require limited special prevention,ending in some pluralistic system with limited penalties for the former, and unlimited penalties for the latter (renamed as measures). We add to this, the precise reference that Mir Puig makes on the point, who maintains that "the attempt to continue maintaining a separation between guilt and prevention, through" responsibility ", generates only confusion, and leaves the question without solution what should be the content of each of the categories and how to limit the entry of any type of purpose that could be attributed to the penalty "by means of «responsibility», it only generates confusion, and leaves without solution the question of what the content of each of the categories should be and how to limit the entry of any type of purpose that could be attributed to the penalty "by means of «responsibility», it only generates confusion, and leaves without solution the question of what the content of each of the categories should be and how to limit the entry of any type of purpose that could be attributed to the penalty "
In the framework of a criminal law of limits, which understands as the essence of the penalty the vulnerability of the criminalized subject, it is this data of selectivity that constitutes the measure of the penalty, notwithstanding which, the pure guilt is recognized as a limit for the act, as we explained before. Since the end of the penalty, from an agnostic point of view, is illegitimate, and the exercise of punitive power is irrational, the graduation of that in the particular case cannot be based on the idea of merit, since it is given face to face with selection processes according to stereotypes. Two main consequences follow from this: first, individuals who are to blame for what they did should not be accountable to the state,but the victims of their work - it cannot be overlooked that the idea of Guilt denotes the notion of debt - but as criminal law dispenses with this, since it seizes the conflict, and does not pursue a reparative or restitutive, this does not happen; and secondly, due to the fact that a certain group of the population, in principle, will never be criminalized (except that it strangely loses its coverage), the degree of the unjust - which would enable the "merit" of a criminal sanction - has nothing to do with the selection process that was operated in reality. In the same way, it would not be appropriate to speak of reproach, since - as Zaffaron warns - it is not a matter of the judicial agency reproaching anything, but rather finding a rational criterion that is not ethically disqualified, from which it can guide its decisions..
In this way, the crime is considered an action subject to punishment, being this characteristic that differentiates the crime from other actions. What Kelsen said is important, insofar as he refutes that it cannot be said that a conduct is the condition of the sanction because it is conceived as an illegal act, but, on the contrary, it is much more fair to say that it is an illegal act because it is it is the condition of a sanction18. In this sense, attentive to the criticisms made above, we cannot follow the idea of the rules as imperatives, or find the prohibited conduct according to the underlying rule in which the sanction is imposed (which is currently being attempted with the notion of risk -Roxin-).
It follows from this that guilt - from a theory of limits to the exercise of punitive power - can only be a filter that is guided by the criterion of rationality. Thus, it cannot be believed that in this stratum of crime theory a reproachful judgment is practiced on the subject, since if understood this way, the norms would be given a motivating power and a real effectiveness, not only for the subject to whom The sanction applies but for all other people who have carried out the same conduct, which has already been classified as false. For this reason, from our point of view, it is possible to avoid the burden that all legitimating theories place on this problematic layer of crime theory, which always refers to discussing the extent to which the penal system tolerates an act against a norm of duty.Criminal law no longer has a configuring function of conduct as conforming to duty, because it has no function - at least legitimate - from the agnostic theory, which does not assign any positive function to the penalty.
For this reason, the penalty to be applied to the specific case is given by the maximum limit of irrationality that the limiting criminal law may allow the exercise of punitive power. This framework will have its definition based on the notion of guilt that we have been outlining; that is, from guilt to vulnerability. The criteria for determining the sentence must be, necessarily, two: a) limiting rationality and b) ethical way of conducting the State, before the enjoyment of individual rights. To do this, we will have to assess the effective violation of the legal rights of other subjects -understood, an unjust one-, which has nothing to do with the violation of a fictitious norm of duty, but will be defined by the non-preeminence in the factual in question of constitutional permission; as well also,the selectivity data that the penal system exercises at the time it is applied.
We deduce from the essence of Man as such - by reason of the provisions of article 1. of the Universal Declaration of Human Rights- and the existence of a horizon of projection of criminal knowledge that recognizes it as such, that the minimum freedom that it must recognize, cannot admit the possibility of the real existence of norms as imperatives, that force it to do or stop doing certain actions, or that define it as a piece of a social system, but quite the opposite. That is, from this, the wrongful act becomes defined as such because it is sentenced, and not - as it could be argued from legitimate preventive ideas - from the violation of a duty that must be beyond the norm can that describes an action and awards it a penalty.
Throughout this brief work, it has become clear that the need to recognize the reality data provided by criminalization processes and the essential questioning carried out in the field of norms theory, imposes a major change in regard to to the conception of guilt as a specific stratum of the theory of crime, where the concepts of reproach, motivation and merit must be put aside, paying attention to the principle of rationality that governs the matter, and respect for the conception of person the framework of a criminal law of limits.
For this reason, given that the purpose of the penalty in the framework of the ideas of agnosticism does not recognize legitimacy, and that it is a mere act of power that must be limited to the minimum possible, with regard to the determination of that in the specific case, it is not going to work with two different ideas of guilt, but they will be the same, and their difference only in perspective, which is that in the assumption of the theory of punitive responsibility, that will be analyzed in a dynamic sense, thus recognizing its nature of social conflict.
Then, the measure of the penalty will be the guilt for the vulnerability, while the maximum limit of that will be the guilt for the act. Due to all the above, it will no longer be about "state cruelty in its proper measure", but rather, on the contrary, it will be the maximum amount of punitive power that in the concrete fact has been able to overcome the scheme contentious filters imposed by the theory of crime, whose existence is not legitimate, but admitted by its consideration as a simple act of power.
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