5
14.
Before settling on how best to classify these behaviors as criminal offenses,
one first has to decide whether the criminal law avenue is the one best suited to
getting at the crux of the problem –in a manner consistent with the conflicting rights
and interests and with the implications of the alternatives available to the lawmakeror whether some other avenue, such as administrative or civil law, for example,
might be the better juridical response. Indeed most infractions are not addressed as
matters of criminal law or through criminal courts, but through measures of other
kinds.
15.
At this point in the analysis, it is worth recalling that as a rule, save for some
digressions into authoritarianism -all too many and unfortunately not yet on the
decline, the current thinking favors the so-called minimalist approach to criminal law.
In other words, moderate, restricted, marginal use of the criminal-law apparatus,
reserving it instead for only those cases when less extreme solutions are either out
of the question or frankly inadequate. The power to punish is the most awesome
weapon that the State –and society, for that matter- has in its arsenal, deploying its
monopoly over the use of force to thwart behaviors that seriously –very seriouslythreaten the life of the community and the fundamental rights of its members.
16.
In an authoritarian political milieu, the criminal law solution is used
frequently: it is not the last resort; it is one of the first, based on the tendency to
“govern with the penal code in the hand,” a proclivity fostered by blatant and
concealed authoritarianism and by ignorance, that can think of no better way to
address society’s legitimate demand for security.
The opposite happens in a
“democratic environment”: criminalization of behaviors and the use of sanctions are
a last resort, turned to only when all others have been exhausted or have proven to
be inadequate to punish the most serious violations of important legal interests.
Then, and only then, does a democracy resort to punitive measures: because it is
indispensable and unavoidable. Even so, classifying behaviors as criminal offenses
must be done carefully and by rigorous standards, and the punishment must always
be tailored to the importance of the protected interests, the harm done to them or
the peril to which they are exposed, and the culpability of the perpetrator. The
lawmaker has a number of useful options available to choose from, as does the
judge. Of course, a distinction has to be made between the “real need” to use the
criminal law system, which must have a clear, objective basis, and the “false need”
to do so because the authorities have been ineffective in doing their job and then
pretend “to correct” the problem by unleashing the repressive machinery.
17.
Reserving the criminal law forum for as few cases as possible must not be
interpreted to mean that illegal conduct is justified or that impunity is authorized,
allowing the offense to go unanswered. Were the State to do so, it would be remiss
in its obligations vis-à-vis the victim. It simply means redirecting the juridical
response into a forum where the offenses can be adjudged reasonably and the
perpetrators punished appropriately. This alternative allows the State to address, in
an appropriate manner and at less social cost, the need to preserve cherished but
apparently conflicting interests, without resorting to unnecessary and by extension
excessive punishments, while also ensuring that those who engage in unlawful
behavior will receive the condemnation they deserve. In short, decriminalization
does not mean license or impunity.
18.
This way of dealing with unlawful conduct seems particularly appropriate in
the case of (some or all) offenses against honor, good name and the prestige of
private persons. The civil law court can be used to achieve the same results that one
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