# The Other Limits on the Power to Punish

Law I · Foundations of Criminal Law and the Theory of the Offence · https://tryals.app/learn/law-i/the-other-limits-on-the-power-to-punish

## 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.

## Practice questions

9 of this lesson's 14 practice questions, with answers. The full set is in the app.

### 1. The principle of exclusive protection of legal goods permits criminalising conduct solely on the ground that a majority regards it as immoral.

**Answer:** False

**Why:** **False.** The principle requires an identifiable interest of sufficient importance to a person or to social life. Widespread moral disapproval is not by itself such an interest, and an offence resting on nothing else is hard to defend on this principle, which is exactly the ground on which many historical offences were eventually repealed.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/the-principle-of-exclusive-protection-of-legal-goods-permits

### 2. Why does the principle of ultima ratio bear chiefly on the legislator rather than on the judge?

A. It allows a judge to acquit whenever an administrative sanction is available for the same facts
B. It asks whether a less burdensome instrument would protect the good adequately, which is a choice made when the offence is created
C. It concerns whether criminal law should reach the conduct at all, not how a given case is decided
D. A court cannot decline to apply a valid offence on the ground that a fine would have sufficed

**Answer:** B. It asks whether a less burdensome instrument would protect the good adequately, which is a choice made when the offence is created; C. It concerns whether criminal law should reach the conduct at all, not how a given case is decided; D. A court cannot decline to apply a valid offence on the ground that a fine would have sufficed

**Why:** The fourth would turn a principle of criminal policy into a defence. Judges apply the offences they are given; the question whether the conduct should have been an offence at all was answered when it was enacted, and its judicial enforcement runs only through constitutional review with a deliberately deferential standard.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/why-does-the-principle-of-ultima-ratio-bear-chiefly-on-the-legislator

### 3. Complete the account of the limits on the power to punish.

**Answer:** Criminal law may protect only interests of sufficient importance, called legal **goods**. The requirement that it be used only where a lesser instrument will not do is **subsidiarity**. Article 5 of the Criminal Code provides that there is no penalty without intent or **negligence**. Article 15 of the Constitution prohibits torture and inhuman or degrading punishment, and abolishes the **death** penalty.

**Why:** The bank deliberately holds both branches of *ultima ratio*. **Subsidiarity** is about choosing between instruments for the same attack; **fragmentariness** is about protecting a good only against the gravest forms of attack rather than against all of them. They point the same way and answer different questions.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/complete-the-account-of-the-limits-on-the-power-to-punish

### 4. Article 5 of the Criminal Code provides that there is no penalty without intent or negligence.

**Answer:** True

**Why:** **True**, and the brevity conceals how much it excludes. Strict criminal liability for a result, liability for another's act, and liability for chance are all cut off by that sentence. Everything the rest of this unit builds — the theory of intent, of negligence, of imputation — is an elaboration of what those six words require.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/article-5-of-the-criminal-code-provides-that-there-is-no-penalty

### 5. What is the ordinary maximum duration, in years, of a prison sentence under Article 36 of the Criminal Code, leaving aside the exceptions the Code itself provides?

**Answer:** 20 (within ±2)

**Why:** **Twenty years**, with a minimum of three months. Both figures are ordinary limits rather than absolute ones: the Code provides exceptions, and the aggregate limits on serving several sentences together are set separately. The pair is worth carrying because a proportionality argument has to start from where the ordinary scale actually runs.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/what-is-the-ordinary-maximum-duration-in-years-of-a-prison-sentence

### 6. Arrange the questions a legislator committed to these limits should ask, in order, before creating a new offence.

**Answer:**

1. Is there an identifiable legal good worth protecting?
2. Is the conduct genuinely harmful to that good?
3. Would a civil or administrative response protect it adequately?
4. Is the proposed penalty range proportionate to the seriousness of the attack?

**Why:** The order is the argument in miniature, and each step can stop the process. No legal good, and there is nothing to protect; no harm, and there is nothing to prevent; an adequate lesser instrument, and criminal law is not the last resort; a disproportionate range, and the offence is objectionable even though everything before it was satisfied.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/arrange-the-questions-a-legislator-committed-to-these-limits-should

### 7. Sort each proposed offence by how it fares under the principle of exclusive protection of legal goods.

**Answer:**

- Protects an identifiable legal good: Water supply poisoning, Serious violence
- Protects only a moral sentiment: Harmless private conduct, Harmless unpopular views
- Protects a legal good, but a lesser instrument would plainly do: Late routine filings, Loading bay parking

**Why:** The third column is where the practical argument is. Nobody defends criminalising a distasteful private act these days; a great many people defend criminalising minor administrative failures, and the *ultima ratio* objection to those is that an administrative sanction protects the same interest at a fraction of the cost to the person and to the courts.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/sort-each-proposed-offence-by-how-it-fares-under-the-principle-of

### 8. Arrange these developments in the humanisation of punishment in chronological order.

**Answer:**

1. The Spanish Constitution abolishes the death penalty, 1978
2. The United Nations Convention against Torture is adopted, 1984
3. The remaining wartime military exception to the abolition is removed by organic law, 1995
4. Protocol 13 to the European Convention abolishes the death penalty in all circumstances, 2002
5. Reviewable permanent imprisonment is introduced into the Criminal Code, 2015

**Why:** The last entry cuts against the direction of the other four, which is why it is included. A sequence of humanising steps is not a law of history; it is a set of political decisions, and the most recent Spanish decision in this area moved the other way and remains contested.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/arrange-these-developments-in-the-humanisation-of-punishment-in

### 9. The principle of culpability insists that there is no penalty without individual guilt. What follows from this requirement when an offence causes catastrophic societal harm?

A. The penalty must reflect the total objective harm inflicted on society
B. The penalty remains strictly bounded by the offender's subjective fault
C. The legislature may authorise strict liability for particularly grave harms
D. The principle shifts its primary institutional focus from the court to parliament

**Answer:** B. The penalty remains strictly bounded by the offender's subjective fault

**Why:** Confusing the gravity of the objective harm with individual blameworthiness breaches Article 5 CP. Because culpability binds the trial judge rather than just the drafter, societal impact cannot elevate a sentence beyond subjective fault or permit strict liability.

Page: https://tryals.app/practice/law-i/the-other-limits-on-the-power-to-punish/the-principle-of-culpability-insists-that-there-is-no-penalty-without