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Misleading Issues in Criminal Law Codification*
Published online by Cambridge University Press: 12 February 2016
Extract
Our purpose in this lecture is to deal with certain basic problems of the recent codification and recodification efforts, indicating particularly some of the major sources of their failures.
The Philosophical and Scientific Underpinning of Criminal Legislation: Both the American and the continental European law proceed either from an obsolete image of man or from a false conception of the impact of a given image on the legal issues at stake, especially those involving the ethical, constitutional demands of our times.
Jurists, lawyers and law professors on both sides of the Atlantic are still formulating criminal law issues in terms of the dichotomy of free will versus determinism. At one time, in Germany, legal insanity was defined in terms of “free determination of the will” and when prominent psychiatrists complained that on the basis of their particular discipline it was impossible for them to answer the question of whether a man did or did not possess such self-determination, legislators accommodated them, formulating the relevant question in terms of “capacity to conform to insight into the wrongfulness (or unlawfulness) of the act”.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974
References
1 On this see Silving, , Essays on Mental Incapacity and Criminal Conduct, (1967) 104–5.Google Scholar
2 The formula but for a single word variation not relevant here has remained the same even in the new German Penal Code which was to become effective in October, 1973 (Act of July 4, 1969, BGB1. I 717, §20). The date as of which this legislation is to become effective has been postponed until January 1, 1975 (Act of July 30, 1973, BGB1. I 909).
3 Cf. Silving, op. cit. supra at pp. 104–6.
4 Durham v. United States 94 U.S. App. D.C. 228, 214 F. 2d 862 (1954).
5 Proposed Official Draft (1962) §4.01.
6 Of course, it does not carry the same implications as does the German change of terminology. Thus, for example, it does not imply adoption of a “diminished responsibility” provision.
7 Since viewed from the standpoint of moral law, the Kantian homo noumenon could never be a product of causation but always gave rise to a new chain of causation, his intervention eliminated ail antecedent potential causes. This theory of the interruption of causation by an intervening human agent had a tremendous impact on the doctrines of causation prevailing in countries of civil law tradition.
8 See infra text at nn. 11 and 12.
9 This evinces from a comparison of the wording of the present German Penal Code §43 with that of the Penal Code which is to become effective in January of next year (supra n. 2) §22, the pertinent clause of the latter reading, “a person who, in his view of the act, immediately sets out to fulfil the crime …” The subjectivism of the latter clause is modified only by grant of a discretionary mitigation or exemption to one “acting by virtue of gross irrationality”. §23 (III). For a similar trend reflected in the ALI Model Penal Code §51, see Silving, , Constituent Elements of Crime (Charles C. Thomas, Springfield, Ill., 1967) 112.Google Scholar
10 Compare present German Code (supra) §48 with the forthcoming Code (supra n. 2) §26.
11 See Ryu, , “Causation in Criminal Law” (1958) 106 U.Pa.L. R. 773CrossRefGoogle Scholar, at 797–798.
12 See forthcoming German Penal Code (supra) §62.
13 See Silving, , Essays on Criminal Procedure (Dennis, Buffalo, N.Y., 1964) p. xvii.Google Scholar
14 See particularly the landmark case of BGHSt. 2, 194, at 200–202 (1952). For translation cf. Silving, , Criminal Justice (1971), vol. II, p. 790, at 794–795Google Scholar. For discussion see Ryu, & Silving, , “Error Juris: A Comparative Study” (1957), 25 U. Chi. L.R. 421CrossRefGoogle Scholar, at 449–458.
15 McNaughten's Case (1843), 10 Clark & F. 200, 8 Eng. Rep. 718 (House of Lords, England).
16 Cf. Ryu & Silving, op. cit. supra n. 14, at p. 430; also Silving, op. cit. supra n. 1, at pp. 80–6.
17 Ignorance of law, even in McNaughten's days, was not thought to be a special symptom of insanity. Cf. Ray, , Medical Jurisprudence of Insanity (1st ed., 1838) 34Google Scholaret seq., and 47.
18 BGHSt. 2, 194, at 204.
19 Act of July 4, 1969 (BGB1. I 717), §17.
20 In recommendations to the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary of the United States Senate, dealing with Reform of the Federal Criminal Laws, 92nd Congress, Second Session, March 21, 1972, Part III, Subpart C (Comparative Law), Policy Questions, at pp. 1970–1976, Silving suggested that the future Federal Criminal Code include an exemption for legal error at least as broad as is the present German one. But this merely means that no exemption of larger scope can even be argued at this time in the United States.
21 “Talmudic Law differs from most (if not all) other systems of law … in that ignorance of law is a good defense to any criminal charge”. Encyclopedia Judaica, vol. 13, p. 226 et seq.
22 State v. Strasburg 60 Wash. 106, Pac. 1020 (Supreme Court of Washington, 1910).
23 392 U.S. 514, at 536; 88 S.Ct. 2145, at 2156 (1968).
24 Genesis 2: 19–20.
25 Genesis 11: 1–10.
26 For repudiation of the historical interpretation of the Cruel and Unusual Punishment Clause, see Justice Brennan, Mr., concurring in Furman v. Georgia 408 U.S. 238Google Scholar, 257, at 263–267, 92 S.Ct. 2726, 2736, at 2739–2741 (1972).
27 471 F. 2d 969 (App. D.C., 1972).
28 This Draft was introduced in the Senate of the United States by Senators Hruska and McClellan on March 27, 1973, as S. 1400, 93d Congress, First Session.
29 Supra n. 27 at p. 985.
30 Supra n. 27 at pp. 985–6.
31 The Durham formula concedes a defence where “the unlawful act was the product of mental disease or defect”. Durham supra n. 4.
32 Compare above, text at n. 2 to 6.
33 See the German Draft of 1962 (E 1962), Comment to its sec. 24, defining “Incapacity to Incur Guilt due to Mental Disturbances”, at pp. 130–1. The major source of incapacity is therein described as “pathological mental disturbance”. The same description appears in the new Penal Code, §20, to become effective in January, 1975, (supra n. 2). It appears that in Germany the assumption described in the text is dominant. The Comment cited above speaks in terms of postulated diseases, in contrast with the exogenous psychoses. The very concept of a postulated disease is too grotesque to require elaborate refutation.
34 This rule figures in the Penal Code at present in force (§51 (II)), as well as in the Alternative Draft (§22) and the forthcoming Penal Code (cited supra n. 2 §21).
35 See supra n. 26.
36 Durkheim, , The Rules of Sociological Method (8th ed., transl, by Solovay, and Mueller, , ed. Catlin, 1938) 71–2.Google Scholar
37 Silving, op. cit. supra n. 9 at pp. 254, 273–281.