Neoclassical Theories of Culpability in Criminal Law
Neoclassical Theories of Culpability
Unit 22: Neoclassical theories of culpability are those that help us understand guilt and the blame directed at the perpetrator of an illegal action. The perpetrator could and should have acted according to the rule of law but chose to act unlawfully. Therefore, culpability is a subjective complaint against the subject who has performed the illegal action. Culpability, as an essential element of a crime, is necessarily its foundation. Two main theories exist regarding this foundation:
- Some base it on the necessity of a penalty. They argue that society does not demand a penalty from a person who is not imputable or who is covered by a cause of exoneration, despite having committed a crime.
- Others base the foundation of culpability on normal motivation. This refers to the subject’s capacity to be motivated by the mandate and prohibition inherent in any legal rule. According to this position, culpability is excluded when the subject cannot be normally motivated by criminal law.
The only reasonable basis for guilt is freedom, although it is difficult to prove.
Historical Evolution of Culpability
Dogmatic Psychological Theory of Guilt (Classical Stage)
This theory adheres to the natural causal concept of action and crime. Key aspects include:
- Liability: It is a prerequisite, but not an element of guilt.
- Forms of guilt: A connection is established between intent (dolus) and negligence (culpa), encompassing malice and recklessness.
- The enforceability of conduct or absence of causes of exoneration is not yet considered at this stage.
Problem: This theory fails to explain cases where the psychological element is clear, yet guilt is denied, such as cases of necessity or duress.
Normative Theory of Culpability (Neoclassical Stage)
This theory views culpability as a reproach to the perpetrator of the illegal action who, being able and obligated to act according to the rule of law, chose to commit the unlawful conduct. The structure of guilt is as follows:
- a) Liability: Capacity for guilt and a defective will.
- b) Forms of guilt: Intent (dolus) and negligence (culpa). Dolus consists of a cognitive element (knowing that the rule prohibits the action) and a volitional element (doing it anyway).
- c) Enforceability of conduct or absence of causes of exoneration: This allows for the evaluation of special situations where guilt may exist, but punishment is not applied, or where guilt does not exist, and punishment is applied.
Theory of Pure Rules of Guilt (Runner-up Stage)
For this theory, the structure of guilt is:
- a) Liability: The core of guilt. It consists of attributing the action to the subject. The conditions of the subject receiving the blame become an essential element of the charge.
- b) Awareness of illegality: To affirm guilt, it is necessary that the subject has the capacity to be aware of the unlawfulness of the conduct. If that possibility is not met, guilt is denied.
- c) Enforceability of a different conduct or absence of causes of exoneration: This shares common ground with the previous theory, although it also intends to recognize the awareness of illegality here.
Difference between *Culpa* and *Dolus*:
- Dolus (Intent): The subject acts with intent.
- Culpa (Negligence): The assessment of an act committed recklessly.
General Effects of Causes of Exclusion of Guilt
These are based on the unenforceability of a different conduct. There are five effects:
- Exemption from liability.
- Allows the imposition of other criminal consequences, such as security measures.
- There is a justification for those acts exempt from criminal liability under a cause of exclusion of guilt.
- Accomplices to a fact whose perpetrator is exempt from criminal liability due to a cause of exclusion of guilt *do* respond.
- Subsisting liability, if any.