2. Two conceptions of criminal norms

As formulated by Mir Puig, the two opposed positions are the following:

"Those who conceive of a criminal norm as a 'norm of valuation' regard it as an expression of a value judgment distinguishing what is licit according to criminal law from what is illicit.

The imperative theory, in contrast, regards a criminal norm as a norm of determination, that is, as a command or prohibition addressed to the citizens. In that sense, the legal order consists of expressions of the legislator's will requiring a certain behaviour from the members of the legal community, and its norms are obligatory prohibitions the people concerned must comply with." (Mir 1976, 53 f.; also Mir 1990,42 ff.)

Now, understood in a radical sense, both theses seem to be untenable. One can­not possibly deny that a criminal norm like article 407 implies more than just a value judgment, and that if someone is threatened with a sanction of up to twenty years in prison this must be so because his behaviour — killing another person — deserves a negative value judgment from the legislator. The diffe­rence between the two positions is, rather, that each of them gives priority to a different one of the two elements of a criminal norm: the imperative, and the evaluative. Thus, Mir Puig himself, for example, defends the imperativist con­ception of a criminal norm as follows:

’’Criminal norms operate by appealing to the citizens' motivation, by threatening them with the harm of punishment, in order to incline them to decide in favor of the law and against crime [...] Obviously, the imperative is logically preceded by a negative valuation of the prohibited or com­manded conduct, but that valuation is only an internal instance, within the legislative process, whereas what is decisive for the efficacy of the criminal norm is that the legislator provide it with the force of an imperative.

As an example of the opposite position, which gives priority to the evaluative aspect, we can quote the treatise on criminal law by Cobo and Vives,¹ who — following Mezger — distinguish between the objective norm of valuation (sti­pulating the ’material wrong’, the unlawfulness of an action) and the subjective norm of determination (determining whether or not the author of an action is culpable):

"'This determination [of what is and what is not in accordance with the legal order] is done ac­cording to the norms of the law which, therefore, appear as objective norms of valuation, as judg­ments over certain events and states from the point of view of the law.'^ The norm appears, prima facie, as a judgment over reality, or rather, those parts of reality that acquire relevance for social life, whether they be human behaviour or simply natural events. That judgment qualifies those events, states or actions as positive or negative, according to the purposes of the law. To that con­ception corresponds, in the criminal order, the conception of material wrong [Unrecht] as an ob­jective violation of the norms of valuation, as a harming or endangering of interests (linked to events, states, etc.) qualified by those norms as legal goods.

From those objective norms of valuation, 'the subjective norms of determination are deduced', that is, the directives for behaviour derived from them. The norm as an objective norm of valu­ation is a norm of law: it determines the order in which social life is embedded, and represents the ^{[55] [56] solution to the many conflicts arising in life in society, according to the ideas that informe the legal system. The norm of determination is a duty norm arising from the legal qualification of a situation or state of affairs and personally obliging the particular citizen. In this sense, the norm is relevant for deciding whether there is culpability in a behaviour, since the personal blame culpa­bility consists in can only be grounded in the existence of an obligation of acting differently from how one acted." (Cobo/Vives 1990,213)}

On the other hand, where imperativists think that criminal norms have a func­tion of 'motivation', defenders of the theory of the 'double function of the crimi­nal norm' see things differently:

"It seems more in accordance with the facts to say that the main function of rules is not to 'moti­vate', but to produce distributions of goods and values between the members of the community, to protect the resulting distribution, and only in a secondary way to motivate individuals to respect it.

The supporters of both positions think that each one of them has important con­sequences from the systemic point of view; for example, imperativists see the subjective moment of disobedience, the intention, as belonging to the core of the material 'wrong', of unlawfulness; in contrast, supporters of the evaluative thesis — or of the thesis of the double function — defend an 'objective' system, that is, the separation of the objective 'wrong' (unlawfulness) and its subjective blameworthiness (culpability) (Vives 1979, 211). And this is said to apply also from the practical point of view, since a number of problems related to the re­levance of error, to negligence, to participation, to failed attempts, etc. are said to be solved differently by the two positions. Here, the dispute supposedly is about the extent to which criminal law may legitimately intervene in the life of individuals. This last claim seems — to say the least — doubtful to us, because the basic assertions of each theory are later nuanced with a number of other postulates, which makes it impossible to say a priori that to adopt one or the other necessarily forces one to sustain a certain practical solution.^[57] We will not here go into these questions which belong to the specific realm of criminal law, but we do want to explain why, in our opinion, both constructions are theoreti­cally inadequate. Both of them do, of course, enable one to come to a 'reasona­ble' solution of the practical problems mentioned above, but only with the help of a number of tricks (which is probably higher in the case of the imperativist conception).

We think that mainly two objections can be directed against an impera­tivist conception like that of Mir. The first concerns the scope of his thesis. Because Mir constructs the theory in order to account for 'primary' criminal norms, that is, those addressed to the citizens. Thus, he doesn't deny that in the legal order there are other kinds of sentences — or norms — that cannot simply be seen as imperatives.^[58] Also, within the sphere of criminal norms, he distin­guishes between the already mentioned 'primary' norms, 'secondary' norms (ad­dressed to the judge, ordering him to inflict some punishment), and norms "re­lated to security measures".^[59] In his opinion, it is clear that secondary norms cannot "have but an imperative nature" (Mir 1990, 43); that means that here one cannot even say that there is a value element.

The second critique refers to the idea that valuation is only an instance preceding the formulation of the imperative, that is, a kind of causal antecedent whose function ends as soon as one passes from the level of a 'wish' to that of a 'norm'. One of the consequences of this thesis is that apparently it cannot adequately account for the treatment criminal codes give to persons considered legally not responsible for their actions. Normally, it is said that children and the mentally impaired can perform unlawful actions, but cannot be culpable (they cannot be blamed for their behaviour). According to the imperativists, at least in the case of subjects who cannot in any way be motivated by norms (small children, or people suffering from severe mental disorders), one would have to conclude that their behaviour cannot even be unlawful (Silva 1992, 346 ff.).

Criticism must also be voiced concerning the conception of the double function of a criminal norm, as presented in the work of Cobo and Vives. The critical points probably derive, more than anything else, from a certain lack of clarity on the part of the authors. As we have already seen, this conception has as a consequence — or claims to justify — an 'objective' systematic construc­tion "in which the sphere of disvalue (of the object of protection) corresponds to unlawfulness and the imperative or motivational aspect of norms to culpa­bility" (Cobo/Vives 1990, 214).

Actually, in our opinion, the followers of the theory of the double func­tion of criminal norms are right when they hold that a criminal norm has a di­rective or imperative as well as an evaluative element. They are also right when they postulate a relation of priority — justificatory priority, we would add — of the evaluative element over the directive one. But they are mistaken in dividing the two elements the way they do.