The special jurisdiction condition as key criterion for liability in duty infringement offenses

Abstract

The transformation of a nation conceived as a juridical-political organization at any of its self-constitutive levels into a social and democratic State subjected to the rule of law imposes, prima facie, the fulfilment of positive duties (jurisdictional duties) by the State itself (through its agents). These duties, “going beyond” the “borderlines” delimiting the configuration of behavioral scopes which are merely organizational (those based on the application of the neminem laede Latin principle), are directed towards the materialization of positive actions striving for the safe conduct and/or protection of fundamental rights and principles understood as “optimization orders”. Both can be affected by a lack of timely and effective intervention from those specially appointed by law. Such special “pre-typical” duty is born, then, from the normative configuration of “other” juridical spheres different from the criminal law; it is rooted in civil, business, or administrative obligations with a clear origin in the political constitution of the State of law and in the legislative order developing such postulates, lege ferenda, and acquires special connotation in the configuration of the State goals. For the specific dogmatic category of duty infringement offenses, the positive behavior function of the liable special agent considers him/her as a non-liable author, in a “subject” of the causal event who does not naturally perform the behavior described for this typology, with no resort to the ontological criteria underlying the central authorship of the criminal event but to the a priori category of the pre juridical conceived duty.