romanian english

Mihai DUNEA: Philosophical and legal problem of jus puniendi in relation with the idea of criminal impunity

Abstract: This article includes an inventory of how Romanian doctrine (both current and older) receives the philosophical and legal problem of the state’s justification for the right (and obligation) to use punishment as a means of social control. This interesting topic for academic debate is taken one step further in that it provides a correlation between it and the problem of impunity (and hence the legislature’s option to renounce or to reduce the punishment for a crime). The author's interest was to see which of the major theories formulated upon this topic is presented as a proper environment for the development of the concept of impunity, or for that of reasons of reduced sentence, and which are not. Conclusions reached were that the retributive system (absolute theories regarding jus puniendi) do not represent such an environment, proof being the Latin quotes under which it became known: punitur quia peccatum est; poena est mallum passionis quod infligitur propter mallum actionis; poena est noxae vindicta, all expressions in the spirit of the motto: Fiat justitia, pereat mundus (Fiat justitia, ruat caelum). The utilitarian sistem (relative theories regarding jus puniendi) – punitur non quia peccatum est, sed ne peccetur – would have an intrinsic ability to be developed into a theory of impunity and reduced punishment, but history has shown that it was usually augmented in the direction known as ex parte principis, or, when its valuation was made towards the direction known as ex parte populi, it disproportionately chosen to achieve maximum happiness (protection) for the non-delinquent majority, at the expense of trying to ensure the most minimal intrusion into the sphere of fundamental rights of  the offenders minority (intrusion manifested by punishment). Therefore, the eclectic theories (the mixed system regarding jus puniendi) – punitur quia peccatum est et ut ne peccetur – presents themselves as the doctrine in the highest position to allow the development of the concepts of legal causes of impunity or of that of reduced punishment.

Key words: state’s right to punish; impunity; reasons to reduce punishment; jus puniendi theories; retribution; utilitarianism; eclectism.

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