Objective and Subjective
Derecho penal refers to two concepts:
- Objective sense: the set of norms defining offences and penalties.
- Subjective sense: the ius puniendi, the state's power to punish.
Two norms inside one article
Article 138 of the Criminal Code punishes killing. This single sentence carries two norms:
| Addressee | Content | |
|---|---|---|
| Primary norm | Citizen | Do not kill |
| Secondary norm | Judge | Impose the penalty |
Spanish doctrine uses these labels in the reverse order of Kelsen.
Scholars also debate whether a rule is a norm of valuation (evaluating an act) or a norm of determination (guiding behaviour). This reappears in Lesson 10.
Structure of a penal precept
Every penal precept links a factual description to a consequence.
- tipo: the statutory description of the forbidden conduct.
- Article 10 defines offences as intentional or negligent acts and omissions punished by law.
- Article 13 classifies offences into three tiers by gravity.
Blank penal laws
A ley penal en blanco refers to another norm to complete its conduct description. The Constitutional Court requires that the criminal rule itself must set the penalty and the essential core of the prohibition.
Common pitfall: The criminal rule cannot delegate the penalty. It only leaves details of conduct to other regulations.