Understanding Criminal Law: Guilt, Error, and Prohibition
Lucid Intervals in Criminal Law
The law considers individuals irresponsible or insane unless they acted during a lucid interval. Legal experts argue that madness or dementia need not be constant or permanent, but rather that a true defect of reason is sufficient. Even with intermittent lucidity, responsibility depends on whether actions were taken with or without understanding.
Unjust Knowledge and Awareness of Wrongdoing
Knowledge of the offense is crucial for culpability. Without it, the individual’s behavior can be attributed to an error of prohibition, preventing them from understanding the unlawful nature of their actions.
Validity of the Principle of Article 8 of the Civil Code and Borderline Cases
The presumption of Article 8 of the Civil Code does not apply to criminal law. Mezger describes error as a defect in the consideration of a particular element’s type. In an error of prohibition, there’s a defect in the assessment of the act itself. Some differentiate between purely regulatory elements and subjective elements of injustice. These regulatory elements must be covered in dolo. Regarding other elements of illegality (forms of commission), an error of prohibition occurs when someone believes their kidnapping is lawful, for example.
In essence, while ignorance of the law is not an excuse in civil matters, it can be in criminal cases, as mistake can negate guilt.
Concept of Consciousness of Illegality
This element of guilt involves knowing that an action is prohibited. Córdoba Roda emphasizes the subject’s awareness of the conflict between their conduct and the law. Roxin states that there’s no awareness of illegality if the person believes a prohibited act is allowed. For instance, if someone kills a figure they believe is attacking them, but who is actually greeting them, there’s no error in the type of act. The subject knows they’re killing but believes it’s justified. Thus, an “error of prohibition” arises when the person understands their action but cannot adapt their conduct to legal requirements due to a lack of understanding of the crime’s elements.
Required Knowledge of Legal Order
Several theories address this:
1. Formal Theories
- Binding’s View: Knowledge of injustice is the formal representation of its illegality, meaning knowledge of the specific criminal law violated.
- Beling’s View: Awareness of illegality requires only the violation of any legal rule.
- Von Liszt’s View: Awareness requires the subject’s behavior to be “subsumed” under the standard described by the legislature.
These theories face criticism, with Beling arguing that Von Liszt’s view would limit legal understanding to lawyers.
2. Material Theories
- Sauer: Knowledge of injustice is not legal knowledge but knowledge of “concrete material injustice.”
- Falla: Awareness of injustice is awareness of the disappointment of social values.
- Von Hippel: Awareness of illegality is knowledge of the conduct’s immorality.
- Kauffmann: Awareness of illegality is the conscience of the behavior’s “social harmfulness.”
- Mayer: Guilt requires awareness of the discrepancy between the legally ordered and the usually commanded, involving knowledge of “cultural standards” as valuation rules.
Material theories struggle with how to sanction those who violate legal order while believing themselves justified on moral, political, or social grounds. These individuals may interpret cultural standards differently or hold different cultural norms, as seen in political crimes. These theories shift away from illegality consciousness based on legal knowledge and introduce the ambiguous concept of “harmfulness.”
3. Intermediate or Eclectic Theory
This theory posits that knowledge of illegality requires not current knowledge, but the possibility of knowing the action’s injustice in a general sense. Maurach argues that only knowledge of the rule’s imperative is necessary—knowing the action opposes the rule, not necessarily having current knowledge.
Failure of Prohibition
Consider someone acting with a clear conscience, believing their actions are right (e.g., cannibalism). This isn’t an error of type; the cannibal knows what they’re doing but believes it aligns with their customs. This constitutes an “error of prohibition.”
Cases of Error of Prohibition
- Error on the existence of the ban: Believing one is acting within the law (e.g., a rural family head believing incest is permissible).
- Error on the limits of a justification: Believing one is protected by a justification without meeting its conditions (e.g., claiming self-defense without unlawful aggression).
- Error of subsumption: Mischaracterizing an element of a crime to believe the act isn’t criminal.
- Error of validity: Knowing a prohibitory rule exists but believing it’s void, unenforceable, repealed, or inapplicable.