An Abstract Analysis of Criminal Law of the Enemy from a Guarantor and Dignatary Constitutionalism Approach (Un Análisis Abstracto del Derecho Penal del Enemigo a partir del Constitucionalismo Garantista y Dignatario)

Abstract:     
The article describes, without considering particular cases – and preferably by consulting the work of Günther Jakobs and some of his commentators – the main features of the Criminal Law of the Enemy, abstractly. This, so as to evaluate their compatibility with the concept of Human Dignity, present in the majority of contemporary constitutional systems as well as in Human Rights protection systems. It is argued by applying the general statement, proposed by the theoretical neo constitutionalism, specially the principle that stresses the hierarchical structure of legal systems, in which the existence of a law depends of its compatibility and adequacy to higher laws. Through this work, we focus on the main non-positivism in the theory of law. It proposes that laws that recognize the Criminal Law of the Enemy, are unconstitutional if Human Dignity is included in the pertaining legal system’s Constitution. It concludes reflecting about some features of Criminal Law of the Enemy, which cause irreconcilable issues with the concept of Human Dignity.

Note: Downloadable document is in Spanish.

Number of Pages in PDF File: 23

Keywords: Criminal Law of the Enemy, Human Dignity, Neo constitutionalism, Contemporary constitutionalism

Accepted Paper Series