Criminal Law and Legal Theory: Not Just Legal Dogmatics, but Never Without It

Abstract

This paper reviews some of the common discussions and criticisms regarding criminal-law dogmatics, some of which are considered less important than their historical weight makes them seem (for example, the debate about their scientific nature) and others are valid in the face of an incorrect practice of dogmatics or, better, in the face of “bad” dogmatics (such as the criticism of the prevalence of the system over the law). A correctly developed dogmatics is claimed, without any pretensions of absolute objectivity, with the positive law as limit and reference, away from an exercise of “art for art’s sake.” A dogmatics that is not isolated from other knowledge nor above them, not hermetic, with respect for the Constitution and fundamental rights and, most especially, focused on the solution of real problems. This kind of solution often does not arise simply from the wording or the language of the positive law. Certain misuses of dogmatics in jurisprudence are reported and the advantages of its correct use for jurisprudence are highlighted. In short, dogmatics is claimed as an important guarantee (not a panacea), with others, of the citizen in avoiding arbitrariness and, therefore, as a limit to punitive power.