The Concept of Guilt in Criminal Law: A Historical and Theoretical Analysis

Posted on Oct 11, 2024 in Law & Jurisprudence

The Fault: Trial of Personal Criticism

1. Wrong Signal and Roxin’s Limits

Assumptions of guilt or responsibility are limited by two factors according to Roxin:

  1. Guilt sensu stricto
  2. The need for preventive criminal sanction

2. Guilt Requirements (Roxin)

For a person to be considered guilty, the following requirements must be met:

  • The person must have committed a criminal wrong (an event that is both typical and unlawful).
  • The person must be capable of self-control, allowing them to choose an alternative, lawful behavior.

Important Elements:

  • The ability for self-control.
  • Alternativeness: The possibility of choosing a different behavior than the one implemented. Guilt is absent when there is no alternativeness (e.g., in cases of duress or insanity).

3. Historical Evolution of the Concept of Guilt

a) Psychological Concept of Guilt (Carrara)

Carrara distinguished between the external act (“acting”) and the internal, subjective element of guilt. The psychological relationship between the subject and the act takes two forms: intent and negligence.

b) Normative Concept of Guilt (Frank)

Frank recognized phenomena that could not be explained by the psychological concept, such as exculpating necessity and the concept of “accountability.” He argued that accountability was not a prerequisite for guilt, but an element of it. Guilt, according to Frank, consists of three equal elements:

  • The normality of the subject.
  • The specific psychic connection with the act (willfully or negligently).
  • The normality of the circumstances in which the subject acted.

“Blameworthiness” is the ability to hold a person responsible for prohibited conduct.

c) The Rules Must (Goldschmidt)

Goldschmidt introduced the concept of “Rules of Duty,” which impose on individuals the obligation to align their conduct with legal requirements. Guilt arises when a person fails to maintain this consistency. However, there are exceptions, such as cases of insanity, where this consistency cannot be demanded. This led to the concept of “unenforceability,” which forms the basis for grounds for acquittal. A person is not guilty if the required degree of resistance is beyond what can be reasonably expected.

d) The End of the Guilt Design

This phase brought two significant changes:

  1. Dolo and culpa (intent and negligence) were removed from guilt and incorporated into the typical action.
  2. Knowledge or awareness of the wrongfulness of the act was incorporated as an element of guilt.

Elements of Culpability:

  • Imputability: (e.g., minors, mentally insane)
  • Knowledge of the unjust: (e.g., mistake of law and mistake of fact)
  • Enforceability of other conduct: (e.g., insurmountable fear and irresistible moral force)

5. Current Conceptions of Guilt

a) Guilt as the Power to Act Otherwise (Welzel)

Guilt arises when a person could have omitted the unlawful act but chose not to. This conception emphasizes human free will and responsible self-determination.

b) Guilt as a Legally Deprecrated Inner Attitude (Jescheck)

Guilt is a criticized fact based on the inner attitude manifested by the subject. It is a legally disapproved inner attitude connected to injurious behavior. This view can be problematic as it may lead to a reproach of the person’s character rather than the act itself.

c) Guilt and Duty to Account for Character (Schopenhauer)

This view assumes that every person knows they can always choose a different action. Responsibility extends not only to the act but also to the character of the person committing it.

d) Attribution of Guilt as General Prevention Needs (Jakobs)

Guilt serves the functional purpose of general prevention. The law aims to stabilize confidence in the legal system, which is disrupted by criminal conduct. Guilt is a prerequisite for punishment, which serves to offset the frustration caused by the offense.

e) Guilt as Unjust Action Despite Affordability of Rules

A person is guilty when they could have acted in accordance with the law, considering their mental and emotional state. Roxin describes guilt as mixed data composed of:

  • An Empirical Part: The observable, specific capacity for self-control a person had at a given time.
  • A Normative or Legislative Part: The untestable capacity to act according to the law.

Elements of Criminal Responsibility and Guilt

Lack of Maturity or Mental Health

Individuals lacking maturity or with mental health conditions that prevent them from understanding the wrongfulness of their actions are not considered guilty. “White blooming” refers to the subject’s ability to grasp the wrongfulness of the act and to act under that understanding.

Chilean Regulation of Unindictable

Article 10 of the Chilean Penal Code exempts the following from criminal liability:

  1. The fool or insane, unless they acted in a lucid interval, and are, for any cause beyond their control, totally deprived of reason.

The Chilean Penal Code, inspired by the Classical School, bases criminal liability on moral responsibility and the concept of a free and intelligent individual. Full responsibility is attributed to those who possess normal mental faculties and act freely.