Cutuma în dreptul penal
The custom in Criminal Law

Summary/Abstract: In this article, the author discusses the role of custom in criminal law. To that end, the author firstly analyzes the survival of the custom in modern legal systems, as well as the foundation of the opinio iuris, as an essential element in the structure of custom. Regarding this latter point, it is considered that customary rules are subjectively perceived as fair by most members of a social group, which in turn gives them a binding effect. However, customary rules must be permanently analyzed through the lens of an objective natural law standard, given the fact that some customs may reflect social beliefs detrimental to human rights. Further, the author examines the prohibition of incrimination, penalties establishment or aggravating criminal responsibility by means of custom in light of the legality principle. At the same time, the author analyzes the dual function of custom in criminal law: as a ground for excluding criminal responsibility and as a tool for legal interpretation. Regarding the first function of custom, it is underlined that as far as customary rules are contrary to positive law that conforms to natural law, they should not serve as a ground for excluding criminal responsibility. Regarding the second function of custom, it is emphasized that recourse to custom as a tool for interpretation creates a high degree of foreseeability as far as criminal law norms are concerned. This is due to the fact that customary rules originate from the collective conscience of a social group and are individualized in time, space and in terms of different domains, therefore being more accessible to every individual.

• Details
• Contents