Legality Is Not Enough
A statute can meet every formal test and still be unjust. Beyond legality, criminal law restricts what the state may punish and how much.
Exclusive Protection of Legal Goods
Criminal law may only protect legal goods. These are vital individual or social interests, such as life, liberty, and property.
Conduct cannot be criminalised merely because it is deemed immoral. Purely abstract ideas or private feelings do not qualify.
Ultima Ratio
Three connected principles form the doctrine of ultima ratio:
- Utility: punishment must genuinely protect the good.
- Subsidiarity: criminal law is an absolute last resort after civil or administrative measures.
- Fragmentariness: the law defends legal goods only against the most serious attacks.
These three limits bind the legislator, not the trial judge.
Culpability
Article 5 CP establishes the core rule: there is no penalty without intent or negligence. It demands three guarantees:
- Personality: no one answers for another person's acts.
- Personal imputation: the offender must be capable of understanding the wrong.
- Proportionality to guilt: the penalty must never exceed individual guilt.
Proportionality
- Abstract: binds the legislator when setting statutory penalty ranges.
- Concrete: binds the judge when choosing a specific sentence.
| Limit | Who it chiefly binds | Where it bites |
|---|---|---|
| Legal goods | The legislator | Drafting offences |
| Ultima ratio | The legislator | Choosing instruments |
| Culpability | The court | Every trial |
| Proportionality | Both | Statutory range and sentence |
Humanity and Reintegration
Article 15 CE bans inhuman punishment. The introduction of reviewable permanent imprisonment tests this guarantee alongside reintegration.
Common pitfall: treating these limits as ordinary trial defences. Most bind the legislator during drafting.