Social legitimization of criminal laws: limits and scope of application

Abstract

The criminal political decisions must previously count on the possession of the information about the social reality and the self-conscious decision made on the basis of that information. Together with the need of empirical studies, another criterion of rationalization of the process of legitimization of criminal regulations lies in the need that this empirical approach thoroughly includes the social reality. Three are the social areas that an adequate process of legitimization of a criminal law should include: the social impact of criminality, the wanted and unwanted effects of criminalization, and the degree of socialization of the social conflict. However, due to different factors, not only structural but also contingent, the social legitimization of criminal laws is limited when it comes to the application of social reality. This situation makes leaving aside certain intuition in the social legitimization of criminal laws impossible. This deficiency has to be mitigated by the ethical and discursive legitimization.