Skip to navigation – Site map

Criminal law and legal dogmatics

María Laura Manrique, Pablo E. Navarro and José M. Peralta
This article is a translation of:
La ley penal y la autoridad de la dogmática

Abstract

The authors expose a challenge that legal dogmatics represents to our legal institutions. Legal dogmatics often claims that it plays a necessary role in identifying legal rules and in solving their indeterminacies. Thus, legal dogmatics is to be viewed as an indispensable complement to legislation. Like legislation, dogmatics also attempts to provide judges with precise guidelines to help them pass the right decisions and avoid the arbitrary ones. Only under this assumption does dogmatics help to make more predictable decisions. However, the problem of dogmatics consists that the search for precision which is to intended to limit the arbitrariness of judicial decisions calls for distinctions that are per se arbitrary ones. In some cases, this arbitrariness results from an indeterminacy generated by vague rules, while in other cases the application of precise rules leads to arbitrariness because officials depart from the reasons that ground them. The challenge of dogmatics is to show that its contribution to rationality can be perceived as an improvement on the legislator’s contribution. That is, dogmatics must show why its rules can succeed where legislation inevitably fails for conceptual reasons. The authors of this paper claim the opposite. The application of dogmatic rules has the same conceptual difficulties as the application of legislated rules alone.Moreover, dogmatic solutions often contend with other formal justifications, i.e., reasons which ground legislated rules.

Top of page

Excerpt

In open access from June 2019.

Outline

1 Introduction
2 Crisis of the law and the legislator’s authority
3 Models of dogmatics
4 Legality and ordinary language
5 Dogmatics, analogy and semantic rules
6 Rules, reasons and recalcitrant cases
7 Rules, principles and the precision of norms
8 Conclusion

First lines

1 Introduction

At the outset of the 19th century, the writing of the first great codes kicked off a process of far-reaching legal and social transformation. From the said coding phenomenon, legislation went from being a reflection of practices and customs to becoming a specific social tool. This phenomenon links decisively with two factors which were both institutionally and theoretically transcendental: (i) the shaping of the basic elements of the rule of law; (ii) the emergence of legal dogmatics as a discipline. On the one hand, legislation contributed considerably to the shaping of the modern rule of law given that, in this institutional design, the legislator becomes responsible for supplying the basic norms for the community, and, as a result, the circumstances in which the state can apply sanctions have become clearly and explicitly established. On the other hand, however, legal dogmatics in general (and criminal dogmatics in particular) has played a much more complex role. Do...

Top of page

References

Electronic reference

María Laura Manrique, Pablo E. Navarro and José M. Peralta, « Criminal law and legal dogmatics », Revus [Online], 31 | 2017, Online since 01 June 2019, connection on 27 July 2017. URL : http://revus.revues.org/3806 ; DOI : 10.4000/revus.3806

Top of page

About the authors

María Laura Manrique

CONICET - Universidad Nacional de Córdoba (Argentina)

Address: Centro de Investigaciones Jurídicas y Sociales – Caseros 301 – 5000 Córdoba – Argentina.
E-mail: laumanrique@hotmail.com

Pablo E. Navarro

CONICET - Universidad Blas Pascal (Argentina)

Address: Centro de Investigaciones Jurídicas y Sociales – Caseros 301 – 5000 Córdoba – Argentina.
E-mail: pabnav@hotmail.com

José M. Peralta

CONICET - Universidad Nacional de Córdoba (Argentina)

Address: Centro de Investigaciones Jurídicas y Sociales – Caseros 301 – 5000 Córdoba – Argentina.
E-mail: miltonjose75@hotmail.com

Top of page

Copyright

All rights reserved

Top of page
  • Revues.org