Phenomenology of General Theory of Criminal Law: Between BARD’s Evolution and Dialectical Synthesis

Abstract

The expression “justice and punishment” considers the entire way that brings a verdict of innocence or guilty. The verdict is a result of an algorithmic sequence of acts. This is the logic of process and its essence is finding in the dialectical form between crime procedure and punishment. Criminal law is a fusion between two aspects: substantive law and procedural law in which this dialectical synthesis doesn’t always implement because of the presence of the reasonable doubt. This paper wants to evidence the particular principles and reasons about a General theory in the civil law and common law. A general theory of law should include not only work focused on criminal law doctrine but also the role of the state in drawing its power to criminalize such as the justification for state of punishment. Criminal law is a product of the state. It’s a creation of political community and the trial recovers political function, not only juridical. It’s necessary researching in two theories the key to know the real face of the criminal science. In fact Theory of Trial and Theory of Punishment are the conditions for the dialectical conception of criminal law, that appears in three forms: Crime-Procedure(Justice)-Punishment. Criminal law depends on economic, social and political changes. Its function fails when law isn’t useful for teaching people what is right or wrong to do under the threat of punishment. But in this case legal certainty is decisive for the application of penalty. In fact the difference between the legal systems of civil law and common law, respectively Italian and American, is based on the fact that Italian tradition has founded its thought also in an abstract language, much influenced by the Greek and Latin tradition. The Anglo-American systems instead think concretely and relate their every consideration with all that is perceptible with the senses. This conception necessarily affects the legal sector of a country, in particular the social sciences. The principles in the Constitutions of many countries in the world, are among the highest endowed with a level of humanity, but the risk of a real disease of the process generates a distrust of the law in the citizens. A question arises: if substantive and procedural law changes according to historical reality, is the problem the man or the system?