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- Title
LEGALIDAD Y GARANTISMO. UNA LECTURA FULLERIANA DE LOS PRINCIPIOS DEL DERECHO PENAL LIBERAL.
- Authors
PEÑA FREIRE, ANTONIO MANUEL
- Abstract
This article analyzes the relationships between Lon Fuller's theory of law and Luigi Ferrajoli's legal guaranteeism. It will be shown that Fuller's principles of legality and Ferrajoli's principles of criminal guaranteeism share the same grounds. This is the reason why the latter can be read in the light of the former. However, that also demonstrates that principles of guaranteeism have a constitutive dimension of criminal law that goes beyond what Ferrajoli attributed to them. Significant ruptures of and exceptions to principles such as liability, presumption of innocence, the exclusive submission of the judge to the law, etc., give rise not to illiberal or authoritarian instances of criminal law, as Ferrajoli argued, but to a sort of non-legal instance of social control incompatible with the form law.
- Subjects
CRIMINAL law; PRESUMPTION of innocence; SOCIAL control; FORMS (Law); EXCEPTIONS (Law)
- Publication
Revista Derechos y Libertades, 2020, Issue 43, p55
- ISSN
1133-0937
- Publication type
Article
- DOI
10.14679/1178