CRIMINAL DOGMATICS, CONTEMPORARY DISCOURSE, AND CRITIQUE OF PUNITIVE CULTURE: BETWEEN LEGAL TECHNICALISM AND THE MORALIZATION OF CRIMINAL PROCEDURE

Abstract

This article investigates the extent to which contemporary criminal dogmatics, when captured by moral discourses of emergency and by securitarian rationalities typical of the risk society, contributes to the legitimization of punitive culture and to the erosion of procedural guarantees. The general objective is to critically examine the tension between legal technicism, penal expansion, and the moralization of criminal procedure, taking as its central axis Luigi Ferrajoli’s penal garantism, in dialogue with the expansive critique developed by Silva Sánchez and Alessandro Baratta, as well as with the sociological contributions of Ulrich Beck, Zygmunt Bauman, and Niklas Luhmann regarding risk, media, and the production of social fear. Methodologically, the study adopts a qualitative approach of a bibliographical and hermeneutic-critical nature, based on the analysis of foundational works articulated with contemporary procedural doctrine. The findings demonstrate that the hypertrophy of the discourse of repressive efficiency, driven by media narratives and by an instrumentalized dogmatics, fosters decisionism, the flexibilization of procedural nullities, and the relativization of due process of law, thereby displacing criminal procedure from its counter-majoritarian function toward a symbolic function of moral satisfaction. It is concluded that only a dogmatic reconstruction grounded in the garantist paradigm, committed to strict legality, substantive adversarial proceedings, and the containment of punitive power, is capable of resisting symbolic penal expansion and preserving the democratic legitimacy of criminal jurisdiction. Furthermore, it is demonstrated that the theory of procedural nullities, when constitutionally interpreted, restrains judicial arbitrariness and reinforces the effective protection of the presumption of innocence.