Social injustice and criminal law: on the political illegitimacy of punishment

It is one thing to affirm that a subject deserves a punishment, another that such punishment is necessary to prevent future crimes, and a very different one is that the instance of imputation has the moral and/or political authority required to impose it. This article tries to analyze the way in which theories of punishment, from the most traditional to the contemporary, have addressed the third question, which we will refer to as "political problem of punishment"; secondly and in such frame, it challenges the legitimacy of the State to punish those whose crimes are connected to an injustice produced or tolerated by the authority itself. Once the question has been analyzed at the level of the theory of punishment, the article calls attention to the need of articulating such a de-legitimation tool in the theory of crime, more specifically through the notion of unenforceability.