La punibilidad como cuarta categoría en la estructura tradicional del delito

Abstract

Within the framework of contemporary criminal dogma, the debate on the incorporation of punishability as an autonomous category within the theory of crime has aroused particular interest in Colombia. Traditionally, the tripartite structure, that is, criminality, illegality, and culpability, has been considered sufficient to define the existence of crime. However, various schools of thought argue that punishability transcends the simple legal effect of culpability and deserves its own place in dogmatic construction. Along these lines, the distinguished criminal lawyer Francisco Bernate has put forward a proposal that recognizes punishability as an independent category, based on criteria associated with the act, the person, and the State. This paper is based on the acceptance of punishability as an autonomous category, insofar as it allows for a more rigorous definition of the legal consequences of crime and, at the same time, offers dogmatic tools to guarantee the principles of proportionality, legality, and necessity of penalties. However, the author's postulates regarding the factors that, according to him, should define it are controversial, since the content of fact, person, and State is biased in light of current doctrinal, jurisprudential, and legal trends. Consequently, the objective of this paper is to present a critical view, maintaining the independence of punishability within the theory of crime, recognizing that its true function is to organize and systematize the conditions and limits for the application of punishment, without diluting it in aspects already resolved by other dogmatic categories. Thus, it is concluded that punishability as a fourth category is necessary, but it must be constructed on solid conceptual foundations that are distinct from those proposed by the distinguished criminal lawyer Francisco Bernate.