As Marina Gascón said Abellán [1] , now talk about guarantees, necessarily leads us to work "law and reason" Luigi Ferrajoli [2] , the main author of the so-called theory of guarantee, theory, whose basis the protection of individual liberties against the arbitrary exercise of power, especially in Criminal Law, in other words, is a model designed to guarantee individual rights, and usually designate as collateral; Ferrajoli [3] acknowledges that this is not unique garantismo criminal law, there is a patrimonial state protection, social and state protection that we want for this analysis: liberal or penal guarantees state protection, and this name designates Ferrajoli established techniques for the rights of freedom, but above all the most important, personal freedom against arbitrary law enforcement or judicial intervention. The postulated Ferrajoli garantismo is linked to the classical tradition of liberal penal thought and the requirement to minimize the punitive power of the state, through strict subjection to the law authorities in Specifically, the constitutional rules governing criminal prosecutions. The act limits the authority holds Ferrajoli are twofold: the substantial criminal guarantees and due process, the first aim to minimize the crime, ie to minimize what the legislature may punish, for its part, procedural safeguards designed to limit the judiciary, to minimize the margin of discretion and discretion in this matter. There are three
thesis posits this theory:
1 .- The first is that there is an inextricable link between security and external justification of criminal law, ie, the ends justify it, are oriented to regulate and minimize the punitive violence, guarantees are the sources that justify the criminal law as an alternative to the anarchy of the reactions of citizens that would occur in the absence of criminal law. According to this theory, criminal law is justified only if in addition to preventing crimes, minimized the violence of the reactions to the crime, so it must become an instrument of defense and security of citizens, but in addition to the deviant minority that offender. This is a paradigm of such abolition of the traditional retributive theory of punishment, if the aim is to protect the weakest in the offense for the taxpayer, in the process to the accused and the execution the defendant.
2 .- The second is that there is an equally inextricable link between security and internal legitimacy of the jurisdiction, the question transverse to understand this thesis is to know What that constitutions set limits to the majority? The response, according to this theory, which essentially offer two things:
a) The equality of citizens, whether diverted or not.
b) The guarantee of fundamental rights, especially the life and personal liberty can not be killed by the will of the majority, nor the interest.
The foundation of the legitimacy of the jurisdiction is not the consensus of the majority, but the truth of its decisions, which is secured by collateral criminal proceedings, especially the strict legality, namely the exhaustive and materiality, and on the other hand, the procedural safeguards of the burden of proof for the prosecution and the right to rebut defense. The internal legitimacy, is then understood as consistency guarantees to be valid at all times, the Iudex, complying with the legal truth shown in the process, because no overwhelming majority, can justify a conviction or an acquittal; judicial work, is essentially non-consensual, and represents what society wants, it must be independent of the feelings of the majority and only has value when fruit reasoned legal truth demonstrated procedurally.
3 .- The third is that the guarantor is the basis of a critical theory and at the same time a political philosophy of criminal law, and to become mainstream, as political philosophy and critical theory of the constitutional state of law. The guarantor is a utilitarian philosophy on the purpose and rationale of the criminal law and at the same time, a theory of minimum criminal law, which replicates the principles of justice and security.
As political philosophy, the guarantor is a normative theory of criminal law must be from an external axiological point of view, is a system guarantees to everyone: those who suffer crime, the processes suffering and the suffering the penalties. This philosophy also provides the critical and external legitimization of the features of injustice of criminal law as being contrary to their purpose evidence.
As legal theory, the guarantor is an empirical theory on the criminal law must be as such Constitutionalism is identified with regulating the creation of law from the law itself, but also is also a projective theory, to integrate with security loopholes that are present at the constitutional level but not in the legislature, it identifies the characteristics of Invalidity and inconsistency of the rules and judicial practice, compared with the model constitution which guarantees the principles of justice.
In conclusion, in the words of Ferrajoli [4] , "On state protection means for a model law based on the strict subordination to the law of all the powers and constraints imposed on them to guarantee the rights enshrined constitutions. In this sense, the guarantor is synonymous with "constitutional rule of law", ie a system that reflects the classic paradigm of the liberal state, extending in two directions: first, all powers, not only judicial but also the legislature and the executive, not just public authorities but also private, on the other hand, all the rights, not only freedom but also social, with the consequent emergence of obligations, as well as prohibitions to the public sphere. "In these lines is summarized the theory of penal guarantees that we can agree or disagree, but no less interesting to discuss.
[1] GASCÓN, ABELLÁN MARIANA, article: "The General Theory of guarantees, with regard to the work of L. Ferrajoli "law and reason." Legal. Yearbook of the Department of Law, University Iberoamericana, No. 31, Section Previa, 2001. Available online: http://www.juridicas.unam.mx/publica/librev/rev/jurid/cont/31/pr/pr13.pdf ; ISSN 1405-0935 (accessed 01/05/2009).
[2] Ferrajoli Luigi, born in Florence on August 6, 1940, is an Italian jurist and one of the leading theorists of legal state protection, a theory developed in the criminal law, but generally considered a paradigm applicable to the security of all rights. Source: Wikipedia, http://es.wikipedia.org/wiki/Luigi_Ferrajoli.
[3] Ferrajoli LUIGI, article: "guarantors and Law Criminal "Law. Yearbook of the Department of Law at the Universidad Iberoamericana, No. 31, Section Previa, 2001. Available online: http://www.juridicas.unam.mx/publica/librev/rev/jurid/cont/31/pr/pr11.pdf ; ISSN 1405-0935 (accessed 01/05/2009).
[4] Ob. cit. page 7.
thesis posits this theory:
1 .- The first is that there is an inextricable link between security and external justification of criminal law, ie, the ends justify it, are oriented to regulate and minimize the punitive violence, guarantees are the sources that justify the criminal law as an alternative to the anarchy of the reactions of citizens that would occur in the absence of criminal law. According to this theory, criminal law is justified only if in addition to preventing crimes, minimized the violence of the reactions to the crime, so it must become an instrument of defense and security of citizens, but in addition to the deviant minority that offender. This is a paradigm of such abolition of the traditional retributive theory of punishment, if the aim is to protect the weakest in the offense for the taxpayer, in the process to the accused and the execution the defendant.
2 .- The second is that there is an equally inextricable link between security and internal legitimacy of the jurisdiction, the question transverse to understand this thesis is to know What that constitutions set limits to the majority? The response, according to this theory, which essentially offer two things:
a) The equality of citizens, whether diverted or not.
b) The guarantee of fundamental rights, especially the life and personal liberty can not be killed by the will of the majority, nor the interest.
The foundation of the legitimacy of the jurisdiction is not the consensus of the majority, but the truth of its decisions, which is secured by collateral criminal proceedings, especially the strict legality, namely the exhaustive and materiality, and on the other hand, the procedural safeguards of the burden of proof for the prosecution and the right to rebut defense. The internal legitimacy, is then understood as consistency guarantees to be valid at all times, the Iudex, complying with the legal truth shown in the process, because no overwhelming majority, can justify a conviction or an acquittal; judicial work, is essentially non-consensual, and represents what society wants, it must be independent of the feelings of the majority and only has value when fruit reasoned legal truth demonstrated procedurally.
3 .- The third is that the guarantor is the basis of a critical theory and at the same time a political philosophy of criminal law, and to become mainstream, as political philosophy and critical theory of the constitutional state of law. The guarantor is a utilitarian philosophy on the purpose and rationale of the criminal law and at the same time, a theory of minimum criminal law, which replicates the principles of justice and security.
As political philosophy, the guarantor is a normative theory of criminal law must be from an external axiological point of view, is a system guarantees to everyone: those who suffer crime, the processes suffering and the suffering the penalties. This philosophy also provides the critical and external legitimization of the features of injustice of criminal law as being contrary to their purpose evidence.
As legal theory, the guarantor is an empirical theory on the criminal law must be as such Constitutionalism is identified with regulating the creation of law from the law itself, but also is also a projective theory, to integrate with security loopholes that are present at the constitutional level but not in the legislature, it identifies the characteristics of Invalidity and inconsistency of the rules and judicial practice, compared with the model constitution which guarantees the principles of justice.
In conclusion, in the words of Ferrajoli [4] , "On state protection means for a model law based on the strict subordination to the law of all the powers and constraints imposed on them to guarantee the rights enshrined constitutions. In this sense, the guarantor is synonymous with "constitutional rule of law", ie a system that reflects the classic paradigm of the liberal state, extending in two directions: first, all powers, not only judicial but also the legislature and the executive, not just public authorities but also private, on the other hand, all the rights, not only freedom but also social, with the consequent emergence of obligations, as well as prohibitions to the public sphere. "In these lines is summarized the theory of penal guarantees that we can agree or disagree, but no less interesting to discuss.
[1] GASCÓN, ABELLÁN MARIANA, article: "The General Theory of guarantees, with regard to the work of L. Ferrajoli "law and reason." Legal. Yearbook of the Department of Law, University Iberoamericana, No. 31, Section Previa, 2001. Available online: http://www.juridicas.unam.mx/publica/librev/rev/jurid/cont/31/pr/pr13.pdf ; ISSN 1405-0935 (accessed 01/05/2009).
[2] Ferrajoli Luigi, born in Florence on August 6, 1940, is an Italian jurist and one of the leading theorists of legal state protection, a theory developed in the criminal law, but generally considered a paradigm applicable to the security of all rights. Source: Wikipedia, http://es.wikipedia.org/wiki/Luigi_Ferrajoli.
[3] Ferrajoli LUIGI, article: "guarantors and Law Criminal "Law. Yearbook of the Department of Law at the Universidad Iberoamericana, No. 31, Section Previa, 2001. Available online: http://www.juridicas.unam.mx/publica/librev/rev/jurid/cont/31/pr/pr11.pdf ; ISSN 1405-0935 (accessed 01/05/2009).
[4] Ob. cit. page 7.
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