Abstract

There is no doubt that the ultima ratio principle represents an essential limit to the state criminal punitive power. Difficulties arise when it is to be determined some criteria giving a material content, mainly considering the political underlying meaning of this principle, as the criminal prosecution decision belong to the lawmaker. Thus, the prima ratio nature of the modern criminal law is one of its features; therefore, it is urgent to search arguments to precise when criminal law is necessary, in terms of efficiency and rationality. This paper pretends to answer to this searching by examining some principles that legitimate the state criminal punitive power and also determining new guidelines in criminal policy. In this context, the role that it can be played by the Constitutional Court is assessed as well as the economic analysis of law, as a weighing up instrument of efficiency.