Contra las prácticas argumentativas de apelación a la "teoría de la pena" en la dogmática penal

Legal theorists tend to identify the distinctive features of criminal law by linking it to the question of the justification of punishment. The paper criticizes the merits of this assumption and generally of legal arguments related to such an approach. It shows that the claim that the distinctiveness of criminal law is to be related to the means of punishment is implausible. Certain institutions of positive criminal law can indeed be linked to certain means and ends analyzed when discussing about the traditional theories of punishment. This is, however, only a matter of identifying the ratio legis behind a specific legal configuration and not linked to a general theoretical problem about the general justification of punishment.