The relationship between the Constitution and Criminal law: a look from the constitutional bank

Abstract

The essay is a reflection on the identity relations that run between the proclamation of rights and constitutionalism, on the one hand, and the foundations and the establishment of the conditions of the power to punish, on the other. Starting from a rapid historical overview, the reflection focuses on the fit of Criminal Law within the logic of the normative Constitution and the constitutionalism of rights, looks into the meaning of the topic of Criminal Law as “Constitution in negative”, and analyzes the challenges and tensions that, with regard to this, spring up as a result of the hyper-activity of the legislator, the self-restraint of the constitutional judge, and the disagreements between national interpretations of certain criminal types and those of the European Court of Human Rights.