NULLUM CRIMEN SINE LEGE: COMMISSION BY OMISSION AND CRIMINAL LAW

Abstract

The thesis of this study flows in diverse levels: a) In a first level it shows the confusion, mistake and inconsistency of the theory of the so-called «legality´s defect» in crimes of commission by omission, which was the majoritarian one in German and Spanish penal doctrine; b) In a second level it explains that the dogmatic of Criminal law tends to search general concepts which do not take into account sufficiently the specific circumstances of the singular case. Consequently, very often this dogmatic ignores the constitutional principles and rights; c) Thirdly, the variety of dogmatic systems in Criminal law shows by itself that the dogmatic discourse is not a scientific one in the strict sense. Additionally this discourse is not neutral and may not be like this, due to the fact this discourse uses to be so often against the constitutionals rights to liberty. However, now more than ever, this discourse should defend those rights