Crisis of the Criminal Law in the Democratic Constitutional State: Manifestations and Trends

Foreword
Preface
Introduction: About the Research Project Crisis of the Criminal Law of Constitutional State of Law (CRESTA)
Contents
Abbreviations
Part I: Legitimacy of Punishment in the Democratic Constitutional State
Is It Possible to Limit the Penal Intervention in the Twenty-First Century?
1 Introduction
2 Limits to Punishment: Principles of Ultima Ratio, Subsidiarity, and Fragmentation
3 Limited Prevention
4 Theory of Offense As a Limiting Instrument of Criminal Intervention
5 Conclusions
References
Review on Retribution as Punishment Purpose
1 Retributionism in German Idealism and Its (Premature?) Farewell
2 The Rise of Retributionism
2.1 Introduction
2.2 The Theory of the Duty to Collaborate in the Maintenance of the Common Good
2.3 Expressive Theories of Punishment
2.4 Retribution As the Satisfaction of Psychosocial Needs for Punishment
3 Plea for a ``Secularized Theory of Punishment´´
3.1 Subordination of the Purposes of Punishment
3.2 Concept, Function, and Ends of Punishment
3.3 Explanatory Levels
4 Conclusions
References
Crises of the Ultima Ratio Principle: Shall We Resume the Constitutional Criminal Law Guidance?
1 Introduction
2 The Ultima Ratio Principle in the History of Ideals
2.1 How the Criminal Law Was Moved to the Ultima Ratio in the Transition from the Absolute Towards the Liberal State
2.2 How the Criminal Law Became the Extrema Ratio in the Transition from the Liberal to the Welfare State
2.3 How Is Being Conducted (One Again) the Criminal Law to the Prima Ratio in the Transition from the Welfare to the Current M...
3 The Meaning of Ultima Ratio Principle in Criminal Law Doctrine
3.1 The Ultima Ratio Principle As Functional Limits of the Criminal Policy
3.2 The Ultima Ratio Principle Among the Dogmatic Categories of Criminal Science
3.3 Crisis of a Criminal Law Basic Principle?
4 The Constitutional Dimension of Ultima Ratio Principle
4.1 The Constitutional Received of the Ultima Ratio Principle As Criminal Policy Limit
4.2 The Deferential Position of the Constitutional Jurisdiction
4.3 Metamorphosis of the Ultima Ratio Principle in Terms of Constitutional Law?
5 Should Gain the Ultima Ratio Principle a Constitutional Dimension?
5.1 Lights and Shadows of ``Constitutionalizing´´ Criminal Law Principles
5.2 Should the Principle of Ultima Ratio Remain in the Minds of the Careful Politicians?
5.3 Should the Ultima Ratio Principle Be Placed at the Hands of Constitutional Court?
6 Proposal of Meaning for the Ultima Ratio Principle in the Constitutional State
6.1 The Positive Approach of the Ultima Ratio Principle in Constitutional Law Doctrine
6.2 The Negative Approach of the Ultima Ratio Principle in Constitutional Law Doctrine
6.3 Human Rights Minimum Criminal Law
7 Conclusions
References
Enforced Disappearance: A Precedent of the Enemy Criminal Law
1 Introduction
1.1 Is It Legal for the State to Punish?
1.2 How Can the State Punish?
2 Scenarios of Application of the Enemy Criminal Law
2.1 Enforced Disappearance in Tucumn (1975-1983)
2.1.1 Illegality
2.1.2 Disproportion
2.1.3 Criminal Discretion
2.1.4 Social Disintegration
2.2 Torture in the Abu Ghraib and Guantanamo Prisons
2.2.1 Illegality
2.2.2 Disproportion
2.2.3 Criminal Discretion
2.2.4 Social and Political Disintegration
3 Theories Whose Intention Is to Legitimise the Enemy Criminal Law
3.1 A Consequentialist Public Morality
3.2 The Doctrine of Double Effect
3.3 The Tragic Decisions
3.4 Moral Absolutism
3.5 Necrophilia, Irrationality and Nihilism
3.6 Expanding Victims: From Persons-Citizens to Individual-Enemies
3.7 ECL Between Biopolitics and Necropolitics
3.8 Necrolaw, Solitary Confinement and Injustice
4 Conclusion
References
Part II: Crisis of Warranty Thinking in the Democratic Constitutional State and Criminal Law
Criminal Law and Legal Theory: Not Just Legal Dogmatics, but Never Without It
1 Introduction
2 Scientific and Objective Nature of Dogmatics
3 Objectivity and Dogmatics Purity? Dogmatics Above the Law? Dogmatics As Panacea?
4 Solution-Oriented Approach to Practical Problems
5 Dogmatics and Jurisprudence of Judges and Courts
6 Conclusion
References
The Populist Traces of Punitive Feminism
1 Introduction: ``Counter-Enlightenment´´ and ``Criminal Involution´´
2 A Dichotomous Rhetoric in a World of Friends and Enemies
3 Populism, a ``Slippery Political Animal´´
4 Pathology, Symptom, Therapy, or Episode?
5 Populism As a Transformation of Democracy
6 Populism in Power
7 The Legislative Technique of Populism: Discriminatory Legalism
8 The Bad Taste of Talking About Money
9 The Bernstein Party: An Impossible ``e pluribus unum´´?
10 Conclusion: From Punitive Populism to Punitive Feminism
Bibliography
Harm, Offense, and Hate Speech
1 Approach
2 About the Doctrine of ``Hate Speech´´
2.1 Exposure
2.2 Critical Assessment
3 Damage, Offense, and Glorification of Terrorism (Art. 578 CP)
3.1 Approach
3.2 Lack of Concreteness of the Protected Legal Good
References
For a Feminist and Guarantism-Based Methodology in the Criminal Protection of Sexual Freedom
1 Introduction
2 Criminal Guarantism
3 Criminal Guarantees: Limits and Links in the Creation and Application of Criminal Law
4 The Effective Protection of Sexual Freedom Under the Framework of the Guarantism Principle in Criminal Law
5 Spanish Regulation of Sexual Offenses Under the 1978 Constitution: The Distinction Between Sexual Abuse and Sexual Assault
6 Towards a New Concept of Sexual Assault
6.1 Sexual Assault: Every Non-Consent Sexual Intercourse Seriously Infringes Sexual Freedom
6.2 Consent to Sexual Intercourse As an Express Will, by Means of External, Conclusive, and Unequivocal Acts
7 Summary
References
Legal Defeasibility: The Limits Between Ductile Law and Arbitrary Law
1 Introduction
2 Some Examples of Defeasibility from Spanish Legal Practice
3 Legal Defeasibility vs. Authoritative Nature of Law
4 Three Types of Defeasibility
4.1 D1: Defeasibility at the Level of Prescriptions Contained in the Formulation of Rules
4.2 Defeasibility at the Level of Underlying Justifications of Rules (D2)
4.3 Radical Defeasibility of Legal Rules (D3)
5 Legal Defeasibility and Discretionality of Legal Operators
6 Conclusions
References
Punishment and Communication in the Post-Truth Society
1 Communicative Theory and Reality of Punishment: Introduction
2 Punishment and Communication
2.1 In General: The Problem of the Channel
2.2 Context Problems: The Case of ``La Manada´´
2.2.1 Dissonant Messages
2.2.2 More Specifically: On Public Discourse in the Post-Truth Era
Displacement of Facts and Expert Discourse
Opinion As a Parallel Truth
Cognitive Irrationalities
Displacement of the Media by Opinion Media and Social Networks
3 From Communicative Reality to the Theory of Punishment: Epilogue
Institutional Documents
Online Publications
References
Presumption of Innocence and Pre-Trial Detention in the Light of Directive (EU) 2016/343
1 Introduction
2 Legal Framework of the European Union
2.1 General Definition: The Presumption of Innocence According to the CFREU
2.2 Content and Scope of the Presumption of Innocence in Directive (EU) 2016/343
2.2.1 Scope of Application: The Limited Scope of Legal Protection
2.2.2 Guarantees to Protect the Presumption of Innocence
Presumption of Innocence as a Rule of Treatment
Presumption of Innocence as a Rule of Judgement
3 Presumption of Innocence and Pre-Trial Detention According to the Court of Justice
References
Part III: Expansion and Trivialization of Criminal Law in the Democratic Constitutional State
Criminal Law Protection of Competition: An Instance of Punitive Excess?
1 Introduction
2 Competition As a Legal Value Worthy of Criminal Law Protection
2.1 On the Concept of Competition
2.2 On Free Competition As a Legal Value Worthy of Criminal Law Protection
3 An Example of Criminal Law Protection of Competition: The Crime of Corruption Involving Private Individuals
4 Criminal Law Protection of Competition As an Example of Punitive Excess and Symbolic Criminal Law
5 Conclusions
References
The Impact of Soft Law on the Expansion of Criminal Law
1 Introduction
2 Soft Law: Concept and Scope
2.1 General Approach to Soft Law
2.2 Elements of Soft Law
2.3 Dogmatic Soft Law (Should Be) vs. Real-Practical Soft Law (Is): An Analysis of the Interdependence of the Basic Characteri...
2.4 FATF Recommendations: An Example of the Denaturalization of Soft Law
3 The Expansion of Criminal Law
3.1 The Expansive Phenomenon: Particularly the Case of Economic Criminal Law
3.2 The Criminal Expansion of Globalization and Its Relationship with the Society of Risk
4 The FATF and Its Recommendations: An Example of the Impact of Soft Law on the Expansion of Criminal Law
5 Final Assessment
References
Enlaces Web
Contentious Politics and Penal Expansion in Spain: A Decade of Criminalization of Protest
1 Introduction
2 Repression of Protest in Spain: Political Contingency or Post-Authoritarian Inherency?
3 Processes of Criminalization of Protest: Four Examples
3.1 The Prosecution of the Organizers of the Demonstration of May 15, 2011 Which Triggered the Indignados Movement (2011-2019)
3.2 The Ruling of the Constitutional Court Declaring the Criminalization of Flag Desecration in Accordance with the Constituti...
3.3 The Ruling of the Constitutional Court Declaring the Law for the Protection of Citizen Security to be in Accordance with t...
3.4 The Denial of Early Release from Prison to Convicted Catalan Pro-Independence Politicians (2017-2020)
4 Conclusions
References
Ceilings for the Criminal Liability of Internet Service Providers
1 Safe Harbour and Neutrality on the Internet
2 Economic Analysis of Copyright and Romantic Authorship
3 Distinctive Authorship and Criminal Enforcement
4 Criminal Liability of Intermediary Service Providers: The Need for Restrictive Interpretation
4.1 Capacity of the Internet Service Provider
4.2 Counter-Notification As a User Right
5 Conclusions
References
Part IV: Paradigm of Danger and Security in the Criminal Law in the Democratic Constitutional State
Why Do They Call It `Dangerousness´ When They Mean `Risk Assessment´? Using Risk Assessment in the Spanish Criminal Justice Sy...
1 Dangerousness and Dangerous People
2 Assessing Dangerousness: Clinical Judgement and Structured Judgement
2.1 Clinical Judgement
2.2 Structured Clinical Judgement
2.3 General Considerations on Actuarial Models
3 The Case of Spain
3.1 Criminal Dangerousness in Spain
3.2 The Risk Assessment of Dangerousness
3.3 The Gradual Introduction of Actuarial Methods in Spain
3.3.1 Risk Assessments on Gender-Based Violence
Severe Intimate Partner Violence Risk Prediction Scale (Revised) VRS-R
Protocol for Assessing the Risk of Intimate Partner Violence
Protocol for Assessing the Risk of Intimate Partner Violence Against Women (RVD-BCN)
3.3.2 Instruments Used in Prison Systems
Assessment Scale for Violent Behaviour and Risk of Recidivism (SPVB-RR)
Table of Risk Variables (TRV)
RisCanvi Protocol
4 Conclusions
References
Criminal Law of Security: Serious Crime and Visibility
1 Introduction
2 Serious Crime and Social Perception
3 The Visibility of Crime
4 Reasons for an Unequal View of Crime
5 Crime Statistics (What We See and What We Do Not See)
6 Conclusions
References