Theory of Crime and Punishment
Theory of Crime
What distinguishes a criminal offense from a civil one?
- In civil law, the characteristic feature is the damage caused.
- In criminal law, the defining element is the typicality of the conduct. The conduct must be specifically described in law to constitute a criminal offense. Harm is not always required, as seen in offenses like drunk driving, which is considered dangerous regardless of whether it results in an accident.
Penalties in Criminal Law
The penalties in our criminal code are primarily restrictive. The quintessential penalty is the restriction of freedom. There are also stringent penalties like fines, a legacy from a time when property was linked to freedom (e.g., during the French Revolution). Removing property, like restricting freedom, is a significant penalty.
Participation in Crime
Participation encompasses those who commit the crime and those who cooperate with it, including aiding and abetting.
03/08/11
Criminal law can be visualized as a triangle: the subject, the offense (budget), and the penalty (legal consequence). Two major sections of criminal law are the theory of crime (related to the crime itself) and the theory of punishment (related to the legal implications). Criminology studies the theory of the subject.
Basics of Criminal Law
Crime → Offense (Budget)
Penalty → Consequences
A crime consists of a factual element (e.g., someone shoots another) and a normative element, which elevates the conduct to an offense. The legal consequence has a regulatory part and the realization of the consequence. The penalty is always dependent on the offense; there can be no punishment without an offense. The penalty is connected to the crime.
- The criminal reaction is either a penalty or a security measure.
Criminal penalties differ from civil remedies. Civil law focuses on forced compliance or compensation for damages, aiming to repair the injury or damage. In civil cases, damages are limited to the actual harm suffered; there is no profit. However, the concept of punitive damages, related to consumer law, introduces an element of punishment for fraudulent actions. Punitive damages go beyond mere compensation and aim to deter future criminal behavior.
Criminal punishment always involves a decrease or loss of legal rights for the individual.
08/08/2011
In criminal law, as in civil matters, an offense is essentially a tort. While civil law often focuses on reparation through compensation, criminal law requires fault or malice. Some legal systems operate on the “theory of created risk,” where responsibility arises from the creation of a risky situation, regardless of guilt. However, this is a policy decision. While our law generally requires guilt (responsibility with fault), there are exceptions known as strict liability, where the subjective element is omitted.
For an act to be considered a crime, the following must be present:
- Severe disturbance to social order: This assessment involves two stages. The first considers the act itself (e.g., Peter was killed). The second considers the actor and their culpability (e.g., John killed Peter, but was it self-defense?).
- Attribution to the subject: There are cases where conduct cannot be criticized (e.g., insanity, prepubescence). Liability requires guilt, a link between the author and the act.
Theory of Crime
The theory of crime examines the general nature of crime and the characteristics required for an act to be considered criminal. It focuses on the elements of the crime and their systematic order. It analyzes common elements across all offenses, not the specific features of individual crimes (covered by the Special Part of Criminal Law). The theory of crime helps avoid excesses in punishment (e.g., unintentional homicide resulting from a minor act). It is a graded study of each element of the crime, acting as a series of filters.
10/08/2011
The theory of crime involves a phased study: 1. Behavior, 2. Typicality, 3. Unlawfulness (Anti-legality), 4. Guilt. Each step is a filter; one cannot proceed to the next without passing the previous. The theory of crime is a system of concepts, providing a framework for understanding the elements of a crime. It allows us to infer logical consequences not explicitly stated in law and to treat similar issues consistently. It assumes the legislature acts reasonably and within constitutional limits. However, legal language is not always clear and can be interpreted in different ways, leading to different conclusions based on one’s understanding of the theory of crime.
The theory of crime has evolved over time, with newer theories addressing shortcomings of older ones. The causal theory emphasizes the disvalue of the result, while the final theory emphasizes the disvalue of the action. The theory of crime’s legitimacy comes not from strictly adhering to criminal law, but from enabling its rational application, respecting constitutional guarantees.
Concepts of Crime
- Total Concept (Synthetic Unit): Views crime as indivisible, without separate elements.
- Analytical Concept: Views crime as having separable and identifiable elements.
Total Concept of Crime
Early authors focused on guilt as the central element, inseparable from the act. This theory declined with von Liszt and Beling, who identified distinct elements of crime, leading to the rise of the analytical theory. The unitary concept viewed crime as inherently evil, immoral, and deviant. It emphasized a personal link between the subject and the deed, consistent with the idea of atonement. This concept allowed for degrees of guilt (mitigating and aggravating circumstances).
17/08/2011
The concept of moral blameworthiness recognized that some acts are objectively improper, regardless of the person’s intent (e.g., self-defense). Objective factors are considered elements of the offense, independent of intent or negligence. Von Ihering (1879) argued that the legality or illegality of an act is an objective assessment based on the law, independent of the subject’s bad faith or misconduct. Von Liszt, Ihering’s disciple, distinguished between illegality (the act against the law) and guilt (the moral element). This distinction marked the beginning of the modern, analytical theory of crime.
Problems with the Total Theory
- Unscientific: Synthesis requires prior analysis of individual elements.
- Neglects different stages of analysis.
Analytical Concept of Crime
This concept arose from distinguishing between unlawfulness and guilt. Unlawfulness is a prerequisite for analyzing guilt. Not all unlawful acts are criminally relevant. Typicality distinguishes criminally relevant acts from other unlawful acts. The legal type describes a specific event that constitutes a crime. Only illegal acts described in a legal type are punishable. Beling (1906) defined the typical element and its role as a necessary antecedent to an offense.
Concept of Crime in Dogmatics
Article 1 of the Penal Code defines crime as “any act or omission punishable by law voluntarily.” Doctrine defines crime as conduct (act or omission) that is typical, unlawful, and guilty. These elements align with the French concept of a voluntary act or omission punishable by law.
Behavior: Action or Omission
The first element is the behavior (act or omission), which must be human. Our legislation does not generally hold legal persons criminally liable, except for bribery, money laundering, and terrorist financing. This limited liability aims to hold companies accountable for failing to prevent these crimes, despite having control mechanisms in place.
24/08/2011
Excluded from the concept of conduct are mere thoughts, uncontrollable reflex movements, unconscious acts, and acts under absolute force (vis absoluta).
Typicality
An act is typical if it matches the legal description of an offense in the Criminal Code or special criminal law. Unlike torts, criminal offenses must be specifically described (nullum crimen sine lege). This requirement is enshrined in Article 19, No. 3, paragraph 8 of the Constitution. The term “type” (Tatbestand in German) refers to the detailed description of the criminal conduct.
Unlawfulness (Anti-legality)
Typical behavior is unlawful if it is prohibited by law. Typicality is an indication of unlawfulness, but not always conclusive. Grounds for justification can negate unlawfulness (e.g., self-defense, necessity). The absence of a ground for justification makes typical conduct unlawful.
31/08/2011
The theory of unlawfulness is closely related to the grounds for justification. It determines the conditions for excluding unlawfulness. Historically, unlawfulness emerged as a concept before typicality. Ihering established unlawfulness as an objective concept, independent of the actor’s guilt.
Guilt
Guilt refers to the subjective reproach directed at the author of an unlawful act. While unlawfulness and typicality are objective, guilt involves a subjective analysis of the actor’s intent, motives, and mental state. Subjective elements of the legal type are part of the definition of the offense (e.g., intent in homicide). Guilt considers whether the author can be blamed for the unlawful act. Causes of exoneration can exclude guilt (e.g., insanity).
05/08/2011
The practical difference between a ground for justification and a cause of exoneration lies in the possibility of applying security measures (e.g., to the insane), even if a penalty is not applicable. Grounds for justification also affect civil liability (e.g., necessity in damaging property to save a life).
Classical Concept of Crime (Liszt-Beling System)
This concept, developed by von Liszt and Beling in the late 19th and early 20th centuries, distinguishes criminal law from criminal policy and criminology. It views criminal law as a safeguard against criminal policy. It adopts a naturalist approach, focusing on observable and measurable elements.
Classical System of Crime:
- Act or omission (Naturalist)
- Typicality (Objective)
- Unlawfulness (Objective)
- Guilt (Psychological): Intent (Dolo) or Negligence (Culpa)
This system emphasizes the objective nature of typicality and unlawfulness, while guilt is considered a psychological concept. The focus is on the result of the act, not the actor’s intent at the level of action.
Action: The classical system adopts a positivist view of action, defined as a willed bodily movement causing a perceptible change in the external world. The focus is on the voluntary nature of the act, not the content of the will.
Type: The type is the objective description of the prohibited conduct, focusing on the physical changes caused in the external world.