Legalidad penal, sus enemigos y el derecho internacional

Abstract

By incorporating the principle of legality in Criminal Law into constitutions, it may be thought that the violation of this principle is only a matter for authoritarian states. However, we argue that this thesis is incorrect. In fact, under much of the prevailing constitutional discourse, particularly in Latin America, it is possible to maintain the formal validity of the principle of legality while legitimizing its violations. Here, we explore the roots of the problem in Radbruch’s formula and in the iusmoralist theory of law by Professor Robert Alexy, who has developed a theory that allows for the relativization of the content of norms without appearing to ignore them. The solution to this dysfunctionality can be found in a minimalist and guarantee-oriented theory of criminal law, as well as in compliance with international systems for the protection of human rights, which sanction states that violate them.