Criminal Science From A Historical And Epistemological Perspective

Abstract

This paper highlights, mainly, three aspects. First, it highlights that the current explanations of penal science and juridical (legal) science in general are odds with historical and epistemological data (of the theory of science) - for example, according to these explanations, legal science as a whole, including penal science, would be a new science, appeared with the first modern penal codes (18th-19th centuries), while the historical data reveal that a legal science stricto sensu has been established since the Roman era and, moreover, that Roman legal science was characterized by an exceptionally high level of technicality; or, according to these explanations, legal science would be an empirical (finding, descriptive) science, which studies human behavior and real social life, while epistemology reveals that, until the modern era, law was considered a part of ethics and, therefore, a formal (abstract) science, with a leading role in the system of science, which studies the normative reality, created by norms, which is an ideal (rational) reality, which differs significantly from the objective reality (concrete, perceptible through the senses). Then, it highlights that these paradigm shifts took place in the modern era, after the emergence of the positivist philosophical current and the so-called "materialist-dialectical philosophy", and in their wake they attracted a whole series of "crises", including a "crisis of penal dogmatics", which collapsed. Finally, this highlights that law cannot become coherent again and cannot justify its leading place in science, as long as jurists do not return to the old conception, called "normative" (or "formal"), as it already claims part of the penal doctrine, especially the German one.