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Critical-legal analysis of penalties: Function and assumptions

Abstract:

The general objective of this article was to carry out a critical-legal analysis of punishment as an institution of criminal law in order to delimit its function, assumptions and limitations. The research was approached under the qualitative approach, it was of analytical cut, the preponderant method used was the legal hermeneutic, the results obtained were achieved thanks to the triangulation of the information obtained from the legal texts and the in-depth interviews conducted with key informants with wide experience and expertise in the matter. This work led to the conclusion that the penalty is the legal consequence imposed on offenders of the criminal law through an unjust conduct that harms a protected legal right, when their criminal responsibility is proven through a conviction, it has a punitive function, but at the same time preventive. Likewise, its impo-sition activates the function of Social Rehabilitation and Social Reinsertion of the active subjects of the crime, therefore, it is retributive and restorative.