Legal Theory of Crime: Evolution & Elements

Posted on Nov 1, 2024 in Law & Jurisprudence

Legal Theory of Crime

The purpose of the legal theory of crime is to systematize the elements that constitute an offense, regardless of whether a crime has actually occurred. The evolution of this theory has paralleled the philosophy of law, but its purpose is distinct. For students, it serves as criteria for identifying and describing what constitutes a crime. For lawmakers, it guides and influences their decisions, while case law uses it to implement the standard in specific cases.

Understanding the Concept of Crime

The concept of crime can be understood from four perspectives:

  • Formal: Felonies and misdemeanors are violations of penal law.
  • Philosophical: Violation of altruistic sentiments of piety and prohibitions necessary for coexistence.
  • Material: An unlawful act or omission, committed culpably, that is typical and punishable by law.
  • Legal: As defined in Article 10 of the Criminal Code, “crimes and offenses are acts or omissions punished by law.”

Elements of a Crime

A crime typically comprises four elements:

  1. Action: A crime is a voluntary human action. It involves both doing something (action) and failing to do something (omission).
  2. Typicality: The action must correspond to a defined criminal offense that punishes such action. It needs to be a typical action that is criminally relevant.
  3. Unlawfulness: The action must also be contrary to the established legal standard. Unlawfulness disappears if there is justification for the action.
  4. Guilt: The subject of the action must be guilty, meaning their conduct is reproachful.

These four elements must ideally be present for an act to be considered a crime. However, there may be situations that exclude one or more of these elements for various reasons:

  • Action can be excluded by the absence of voluntariness.
  • Typicality can be excluded when elements of the offense are missing.
  • Unlawfulness can be excluded due to justification.
  • Guilt can be excluded by the incapacity of the subject, invincible error, or exceptional situations.

Stages and Theories of Crime

There are four main stages in the evolution of the legal theory of crime:

  1. Classical Stage (Scientific Positivism): The four elements of the offense are considered separate. Action, typicality, and unlawfulness are objective, while guilt is subjective.
  2. Neoclassical Stage: Recognizes that human behavior is not uniform. Introduces the idea of valuation and considers omission within the action element.
  3. Kiel School (Nazi Germany): Focused on the “author” of the crime rather than the rights of the individual. Created types of criminals instead of types of crimes.
  4. Final Stage: Emphasizes the purpose and intent behind the action. Places the concept of fraud within the action itself, giving it a subjective character.

Classical Stage

  • Action: Bodily movement resulting in a cause and effect. Essential causal link between action and result.
  • Typicality: Objective description of what is considered criminal.
  • Unlawfulness: Action not meeting the legal standard is sufficient for unlawfulness.
  • Fault: Psychological connection between the action and the subject’s will. Distinguishes between intentional guilt (knowing the consequences) and reckless guilt (negligence).

Neoclassical Stage

  • Action: Bodily movement triggering a causal process. Includes omission (failure to act).
  • Typicality: Objective but with a subjective element. Harmful action affecting a legally protected right.
  • Unlawfulness: An assessment made by the legislature on the action.
  • Fault: Capacity of the accused. Includes intentional guilt and reckless guilt. Introduces elements of enforceability and reproach.

Kiel School

  • Action: Overall assessment of the subject based on the perceived type of criminal.
  • Typicality: Replaced by analogous application of the rule against the defendant.
  • Unlawfulness: Defined as social harmfulness, anything that harms the state.
  • Guilt: Based on the subject’s way of life, if it is contrary to what is considered socially acceptable.

Final Stage

  • Action: Includes the purpose and level of knowledge of the subject. Fraud is a key element, with both cognitive and volitional aspects.
  • Typicality: Criminal wrong, with both subjective and objective elements.
  • Unlawfulness: The subject has acted outside the law.
  • Guilt: Liability. Requires the subject to be capable of understanding and being aware of the accusation.

Evolution of the Legal Theory of Crime

The essential element driving change in the legal theory of crime is the concept of action. It has been viewed in three main ways:

  1. Action as a Natural Phenomenon: Muscle movement that initiates causal courses and modifies external reality (Classical Stage).
  2. Action Under Human Will: Any human behavior, both active and passive (Neoclassical Stage).
  3. Concept of Social Action: Criminally relevant behavior. Willful act or omission, or reckless act (Final Stage).