Potestas puniendi is a latin expression meaning power to punish. Minor spoilers for Chrono Trigger, Professor Layton and the Diabolical Box, Warcraft III: Reign of Chaos and Grim Fandango.
Back in the day, a few weird guys called Thomas Hobbes, John Locke and Jean-Jacques Rousseau developed a theory that can be summed up into something like this: "The civilized state's justification is based on the hipothesis that men and women, at the state of nature, would enjoy a complete freedom, with no restrictions to their wishes. However the difficulties would soon appear, due to the clash between unlimited wishes and limited resources. The use of violence defines, then, the relationships at the state of nature. The way to nullify the state of nature is the civilized state. The expropriation by force, as a strong possibility, brings uncertainty to the possession of goods, leading to the creation of said civilized state. In order to obtain security, men and women choose to give the civilized state a little piece of their freedom, so everyone could actually live, with the remaining freedom. The civilized state, then, has to execute this alienated freedom if the group rules are violated". I criticize part of this theory, but the main idea here is: The so-called civilized state theorized by the mentioned trio, and the postmodern state in which we live, should ideally execute the potestas puniendi within the alienated freedom.
Hop aboard the Epoch, Crono will take you to 65.000.000 BC. Remember when Kino took Crono's Gate Key? Crono and Ayla meet Kino at Forest Maze, he confesses it, Ayla bashes Kino's head and asks him if he knows why she's punishing him. Kino says Ayla doesn't like him, Ayla says that's not true and tells Kino stealing is wrong. According to Hobbes, Locke and Rousseau, Ioka Village would be an example of the nature state. However, we can see Ioka Village is pretty
organized: Its denizens coexist without troubles and Ayla is ready to use potestas puniendi as soon as someone tries to ruin the peaceful mood, even if she doesn't wants to (Ayla like Kino BEST!). Punishment is serious business.
There are some guidelines surrounding potestas puniendi: We must consider it only when all other options have been depleted without solving the problem; The punishment and the crime must also be on the same level. At the beginning of Professor Layton and the Diabolical Box, Layton purposefully hides evidence related to a murder from a detective, so he could start his own investigation, often getting ahead of police. Monaco is an upcoming stealth indie game where the player breaks into huge mansions to steal stuff. (You should play Monaco when it comes out, it looks brilliant). Kratos killed a lot of people for selfish reasons throughout the God of War franchise. Imagine the terrorists responsible for the No Russian incident at that airport were arrested. I obviously wouldn't give these four cases the same treatment. If I were a criminal judge, I would say that Layton's case belongs to administrative law, not to criminal law; that Kratos can't be held responsible for his actions because he's insane; that the Monaco thieves steal from incredibly rich people, so no real harm is done and I would make sure they received a small punishment unrelated to prison; that the No Russian guys should be sent to an international court. Do you agree with my solutions? Did you figure out why the guidelines exist? It took criminal law scholars a long time to realize they were needed.
Sadly, these guidelines have strong opponents; potestas puniendi is often the first answer given by governments to crimes and most punishments cause way more damage than the crimes themselves. Traumatic experiences both for the criminal and his family aside, prison deals with two things: freedom and lifetime. Freedom can be returned; lifetime, however, cannot. If someone spends three years at jail, these years will never come back, even when s/he regains his/her freedom. Time is by far one of our most valuable possessions. The fact that prison takes from men and women something no one will never be able to replace, to me, is reason enough for society as a whole to discuss new, lighter punishments, in accordance to the 'proportionality and reasonability' guideline. And I won't even bother writing about the worst nightmare ever that is death penalty.
Instead of cooperating with criminal law, potestas puniendi became its archenemy. Criminal law defends individual guarantees and humanitary law principles. Potestas puniendi was taken from its original place, turned into a tool to (re)create violences and label certain groups as innate criminals/wrongdoers, ignoring everything criminal law strives for.
I don't know if humankind ever experienced a political situation similar to Ioka Village, though I'm more inclined to "no". I do know, however, that the separation between criminal law and potestas puniendi happened at a very early stage of history. Except for a very brief moment with democracies at Greece and Rome, little to no limits to the leaders was the rule for Classical Antiquity and Middle Ages.
Prince Arthas's campaign: The Scourge of Lordaeron, chapter 6: The Culling. Arthas, Uther and Jaina arrive at Stratholme only to see its citizens already Plagued. Arthas wants to kill the whole town so he won't have to admit defeat to the necromancers, disbanding anyone who disagrees; he was so determined to see the problem solved, he would do anything to succeed. Most rulers that lived before the French Revolution were like this: doing whatever they wanted without actually thinking about the people they were supposed to lead, and if their actions ended up being the same actions the people wanted, hey, bonus. Even after the French Revolution, rulers (both all-out ones and behind-the-shadows ones) use any breaches available to work on personal goals.
No detailed historical analysis here, but an overall view might still help. Those who care about the true spirit of criminal law are few (like the Grey Wardens), and even less of them reach high enough positions to try and change things at a bigger picture. Those who want potestas puniendi as a massive, unstoppable beast that forces individuals to stand in its path so it can crush them later, however, outnumber the raindrops at a big storm. (I would say
they outnumber the random stuff at a Katamari level, but that's an understatement. You get the idea). I should also point that most people who want potestas puniendi as said beast were brainwashed accordingly - they don't realize how much they hurt their society as a whole, those around them and even themselves. This means that criminal law is very slow to come up with new mechanisms to fight potestas puniendi; while potestas puniendi is ready to twist anything criminal law designs to its own purposes, and design its own nefarious mechanisms, at lightning speed.
Manny Calavera is a Grim Reaper, a guy whose job is to guide the departed through the Land of The Dead to the Ninth Underworld. He works at the Department of Death. Crossing the Land of The Dead by foot takes four years; if you were evil when alive, you won't get much help and might not make it to the Ninth Underworld. If you weren't that evil, there might be people (well, un-people) willing to help you. Those who were very good when alive can ride the Number 9 train, which takes four days to make the trip, instead of four years. There are, however, some un-people tweaking the system - why can't everything go smoothly just once? I won't say anything else to avoid spoiling the great videogame that is Grim Fandango, but you can piece it together with this paragraph and the above one. If you made it this far, you're a smart person, so I know you can do it.
I wonder what Roger Ebert and Jack Thompson would say about that: videogames showing us what's wrong in our society and how we could fix it! That is, if Ebert and Thompson weren't the prejudiced jackasses they are.
In the end, it comes down to one thing: choosing your side. Will you join criminal law in its righteous quest for a safer society and a better future, or allow yourself to be seized by potestas puniendi and become a tool for interests that aren't your own? Of course, you could choose not to choose and let others deal with the situation. You should not forget, though, that there are people who want you kneeled, so you won't try to mess with their agenda. If
you choose neutrality, you may still be losing a lot, as potestas puniendi must be returned to its first place before it subdues criminal law. Criminal law accomplished a lot of things since it was created, but its struggle will probably last for centuries. Potestas puniendi, as it is, won't just sink into a hole and let criminal law instantly put everything on tracks again; practically no one can change everything all of a sudden. As long as I'm here, I'll help with my two cents: the real changes are made upon small, seemingly insignificant details in our daily life, not epic dreams about freedom, equality and such. We can influence the world around us with actions directed to these details; they might seem irrelevant, but can make a huge difference in the long run. If we don't do anything, potestas puniendi will craft an extremely harsh and unfriendly world to our sons and daughters and grandsons and granddaughters.