El derecho penal en la sociedad actual: un riesgo para las garantias penales

Abstract

Expansion of the criminal law is a reality in all societies of our cultural sphere. This phenomenon manifests the State’s response to the growing demands for public safety in the face of a perceived increase in classic criminality as well as the emergence of new risks inherent to modernity. This expansion entails a tension in the civil liberties typical of the post-Enlightenment criminal law. The criminal law science has adopted several approaches, depending on the aspect of the expansion being dealt with. In general, at least four trends can be mentioned as far as the expansion phenomenon is con-cerned: (i) the minimalism represented by the School of Frankfurt; (ii) the "efficient Criminal Law"; (iii) Eclectic approaches; and (iv) Jesús María Silva’s "limited resignation" approach. "Flexibility", "easing", or disregard of the constitutional rights in the "old and good liberal criminal law" are unacceptable in any sphere. These are intangible rights, some of which should be raised to constitutional status.