Consideraciones sobre normas, derechos y deberes en el injusto penal

Abstract

This work seeks to relate a concept of norm with the criminal wrongdoing. In this regard, the primary norm (or conduct norm) is considered as an imperative norm, as a norm of a criminal law nature (not a norm of public law), as a norm aimed at a suitable recipient and as a norm of individual character (it is not a norm «aimed to everyone»). Because of that is the primary norm an order or a prohibition aimed at a concrete person in a concrete situation. This understanding of the norm as an imperative must be compatible with the categorial distinction between wrongdoing and culpability. The primary norm has a functional relationship with each one of those categories of the concept of crime, hence it would be possible to understand that the distributive aspect of the norm displays effects in the wrongdoing. Criminal Law must protect legally protected interests not only through imposition of duties but also through assignment of rights. Therefore, the wrongdoing is the place in which the analysis of the «coordination» of spheres of freedom occurs. These resort to the right (the «other side» of the duty imposed by the norm) to interact between them and to solve cases in which one of the spheres of freedom interfere with another in an illegitimate and serious manner.