De la relación entre Derecho, Moral y Punibilidad

Abstract

According to Radbruch’s formula, the conflict between justice and the legal certainty should be solved in favour of the positive law, except for cases where the discrepancy between the positive law and justice reaches a level so unbearable that the law has to make way for justice because it has to be considered erroneous law. However, the ‘nulla poena sine lege’ principle applies in particular to criminal laws. According to this principle, the punishability of and act should be legally established before the act in question. As a consequence, the positive criminal law solves the conflict between justice and legal certainty in favour of the positive law in a more strict manner. Thus, not only extremely unjust elements of the offense, but also extremely unjust defenses are still applicable because of the legal certainty that they produce.
Against this opinion of Robert Alexy, even an extremely unjust positive criminal law can only be considered invalid if that result does not appear to generate an essential loss of legal certainty because the criminal law in question it is nonetheless almost not enforced in a society, as a result of a deficient observance and application, and, thus, does not produce any reliable contribution to the legal certainty in the community.