Retribution and the foundations of Criminal Law

Abstract

The article aims to study the purposes of punishment. Its starting point is the traditional dogmatic division of the theories of the purpose of punishment into two main types: preventive – analyzing all its subspecies (negative and positive special prevention; and negative and positive general prevention) – and retributive. Initially, the preventive theories, predominant in the modern doctrine, are analyzed,  indicating the criticism to each one of them and the deficiencies to which they are all subjected: instrumentalization of the individual and loss of proportionality of the sanction when its purpose is exclusively preventive. After that, classical and modern theories of retribution are studied. At the end, the most common criticisms to absolute theories are addressed and refuted, and the relevance of the retributive purpose of punishment is demonstrated, whether in pure or mixed models, as a way to ensure the respect for human dignity, the limitation of Criminal Law, and the proportionality of punishments to the protection of legal assets.