SOBRE LA DISTINCIÓN DE GÜNTHER JAKOBS ENTRE “DERECHO PENAL DEL CIUDADANO” Y “DERECHO PENAL DEL ENEMIGO”

Abstract

In this article, the distinction between two sorts of criminal law, which Günther Jakobs asserts in his article “Civil criminal law and enemy criminal law” (2003, 2994) is analyzed and questioned. On the one hand, this distinction is confusing, and it does not remain in opposition to the classics whom Jakobs appeals to. On the other hand, it is a distinction which covers some importants problems, related to the boundaries of criminal law, which this distinction seems to refer to. With a systematic intention, this article resorts to the notions of person and sentence
from Hegel’s “Philosophy of Law”; to basic concepts from Kant’s Perpetual Peace; to the  classical discussion on the concept of bellum punitivum; and also to the Carl Schmitt’s Concept of the Political, in order to show that Jakobs’ distinction, because it has not the scope and the same differentiation capacity as the classics he refers to, confuses some aspects, which precisely in criminal law, it is very important to maintain separately