# Criminal Law in Two Senses Law I · Foundations of Criminal Law and the Theory of the Offence · https://tryals.app/learn/law-i/criminal-law-in-two-senses ## 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. ## Practice questions 10 of this lesson's 14 practice questions, with answers. The full set is in the app. ### 1. Why is a single article such as "whoever kills another shall be punished with ten to fifteen years" said to contain two norms rather than one? A. It reflects objective criminal law by defining offences, and subjective criminal law via state ius puniendi. B. It sets an explicit prohibition for completed acts alongside an implicit sanction for negligent omissions. C. It provides the core criminal prohibition whilst delegating the detailed execution conditions to another rule. D. It addresses the citizen with a prohibition and the judge with a duty to punish as distinct addressees. **Answer:** D. It addresses the citizen with a prohibition and the judge with a duty to punish as distinct addressees. **Why:** Because two different people are being addressed. The **primary** norm tells the citizen not to kill and is nowhere written; the **secondary** norm tells the judge what to do if someone does, and is the only part that appears in the text. The criminal law reaches the citizen through a sentence addressed to somebody else, which is a genuinely odd feature of the field. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/why-is-a-single-article-such-as-whoever-kills-another-shall-be ### 2. Article 10 of the Criminal Code defines offences as intentional or negligent acts and omissions punished by law. **Answer:** True **Why:** **True**, and the definition is doing four jobs at once. It admits **omissions** as well as acts, it admits **negligence** as well as intent, it requires that the conduct be punished by law, and by naming only these it excludes strictly liable offences from the Code's own definition of what an offence is. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/article-10-of-the-criminal-code-defines-offences-as-intentional-or ### 3. Spanish doctrine treats a penal article as containing two distinct norms rather than a single rule. What follows from this distinction when examining the addressee of the statute? A. Both citizens and judges are joint addressees of the primary prohibition B. Judges derive their mandate from the primary norm addressed to citizens C. Citizens are directed to abstain whilst judges are directed to sanction D. Citizens receive the secondary norm once a judge establishes the offence **Answer:** C. Citizens are directed to abstain whilst judges are directed to sanction **Why:** Conflating the two addressees ignores how the legal order bifurcates conduct guidance from adjudicative duty. The citizen is bound ex ante by the behavioural command, whereas the judicial mandate to punish arises only ex post upon breach. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/spanish-doctrine-treats-a-penal-article-as-containing-two-distinct ### 4. Complete the vocabulary of the penal norm. **Answer:** The power of the state to define offences and impose penalties is the **ius puniendi**. The norm forbidding the citizen to kill is, in Spanish penal usage, the **primary** norm, and the norm directing the judge to punish is the **secondary** norm. A criminal provision that completes the description of the forbidden conduct by referring to another norm is a penal law in **blank**. **Why:** The middle two blanks are the ones to fix in memory with the warning attached: Spanish penal doctrine calls the norm addressed to the citizen **primary**, and Kelsen called the norm addressed to the official primary. Reading a translated text without checking which convention is in use produces confusion that looks like disagreement. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/complete-the-vocabulary-of-the-penal-norm ### 5. Into how many classes does Article 13 of the Criminal Code sort offences by the gravity of their penalty? **Answer:** 3 **Why:** **Three**: *graves*, *menos graves* and *leves*. The classification is not decorative, it determines the procedure, the competent court, the limitation periods and whether attempts and preparatory acts are punishable, so getting an offence into the right class settles a great many downstream questions at once. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/into-how-many-classes-does-article-13-of-the-criminal-code-sort ### 6. Arrange the stages by which conduct comes to be punished, in the order they occur. **Answer:** 1. The legislator identifies an interest worth protecting 2. The legislator describes the conduct that attacks it 3. The legislator attaches a penalty to that description 4. A court finds facts matching the description 5. The court imposes a penalty within the statutory range **Why:** The break between the third and the fourth step is the principle of legality in outline. Everything the legislator does must be finished before the conduct occurs; everything the court does is bounded by what the legislator already wrote. Reverse the order at any point and you have a court punishing conduct nobody had described. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/arrange-the-stages-by-which-conduct-comes-to-be-punished-in-the ### 7. Sort each response by the branch of law that imposes it. **Answer:** - Criminal law: Court prison sentence, Driving ban on conviction - Administrative sanctioning law: Environmental agency fine, Licence revoked by issuer - Civil liability: Negligence damages award, Restitution to owner **Why:** The boundary between the first two columns is porous and politically live: the same conduct can often be routed either way, and the choice determines which guarantees apply. That is one reason the principle of *ultima ratio* has real work to do, if an administrative route protects the interest adequately, the criminal one is not needed. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/sort-each-response-by-the-branch-of-law-that-imposes-it ### 8. A blank penal law is one that leaves the penalty to be fixed by a regulation. **Answer:** False **Why:** **False**, and this is the standard misdescription. The penalty must appear in the criminal statute; so must the essential core of the prohibition. What the referral supplies is part of the *description of the conduct* — a discharge limit, a list of controlled substances, a technical standard — and even that is accepted only under conditions. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/a-blank-penal-law-is-one-that-leaves-the-penalty-to-be-fixed-by-a ### 9. Match each term to what it names. **Answer:** - Norm of valuation → An expression that a state of affairs is disapproved by the order - Norm of determination → An imperative aimed at motivating an addressee who can be motivated - Security measure → A consequence imposed on grounds of dangerousness rather than guilt - Delito leve → The least serious class of offence in the Code's threefold classification **Why:** The first pair looks abstract and is not. If the penal norm is an imperative addressed to someone capable of being motivated, then a person who cannot be motivated does not breach it and their conduct is not unlawful at all; if it is a valuation, their conduct is unlawful and they are merely not to blame. Lesson 10 turns on the answer. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/match-each-term-to-what-it-names ### 10. In what year was the Spanish Criminal Code now in force enacted? **Answer:** 1995 (within ±2) **Why:** **1995.** It is often called the criminal code of democracy because it was the first complete recasting after the 1978 Constitution rather than a reform of the Francoist text. It has been amended many times since, most extensively in 2010 and 2015, so a citation always needs to be read against the version in force at the relevant date. Page: https://tryals.app/practice/law-i/criminal-law-in-two-senses/in-what-year-was-the-spanish-criminal-code-now-in-force-enacted