Noi reflecții privind criza dogmaticii penale
New Reflections on The Penal Dogmatic Crisis

Author(s): Mioara-Ketty Guiu
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Universul Juridic
Keywords: Empirical Science; Formal Science; Normativism;
Summary/Abstract: This study starts from the observation that nowadays, more and more authors speak of a "crisis of law", especially of a "crisis of penal dogmatics", and it is trying to clarify how this situation came about. To this end, the author makes a foray into the history of law, which reveals, in summary, the following: the fact that legal science was not born in the modern era, but dates back to early antiquity; the fact that unlike other sciences (most), which present themselves as empirical sciences, legal science presents itself, par excellence, as a formal science, which derives directly from the general logic (metaphysica generalis); the fact that, like all sciences, legal science consists of two parts, namely a general part (purely theoretical) and a special part (applicative); the fact that until the modern era, prevailed the view that legal science and, in particular, its general part presents itself as a philosophical discipline, with a high degree of abstraction, which can progress, only by virtue of a normative conception, that is, taking into account that, by its rules, the law creates a (ideal) juridical reality, with own entities, which never coincides with the concrete, objectively existing reality; the fact that the regression or "crisis" of law started in the middle of the nineteenth century (after Hegel's death), when idealistic philosophy went into decline, to make way for a materialistic and deterministic conception; the fact that, from that moment on, legal science abandoned the normative conception in favor of a naturalistic conception, according to the new ”philosophy about the world and life"; the fact that overcoming the state of crisis is possible only in one way, namely returning to the old conception, normative, as claimed, in particular, by the German penalists.

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