2012 Five Theses...


Not to be cited without the author’s permission


Ari-Matti Nuutila




Nordic legal culture is going through fundamental changes which concern also legal sciences and criminal justice system. I reduce here the changes to five different theses. They reflect “the logics of the material law”.

We must understand more clearly the connection between the general doctrines of criminal law and material criminal legislation, criminal policy and legal thinking in general. Such basic concepts as act, omission, voluntary, cause, actor, intentional, negligent, mistake, ignorance, justification, excuse, attempt, complicity and instigation are not merely philosophical issues concerning human behavior. Instead, they are general tools with which we connect human behavior to prohibitions and commands enacted in criminal law.

We are dealing with “logics” in the sense that the changes are needed to the general doctrines and general principles of criminal law whether we want them or not. The general doctrines of criminal law have a double function. They explain, give coherence, systematize and even try to justify the set of rules which we call criminal legislation. At the same time the general doctrines and principles of criminal law are to be applied directly to individual cases. This has become more difficult because regulatory region of criminal law is getting wider, the positive expectations to the criminal justice system are huge, and in general the societal thinking of holding people responsible is changing. In modern criminal policy obligations to monitor activities, to protect others and to use one’s capacities and competences in steering happenings is much more common than previously.

Thesis I. The traditional general doctrines of criminal law are based on a regulatory model which does not exist anymore. Liberalistic criminal law was a set of rules in which individuals were prohibited to inflict pain and suffering, bodily harm, death, loss of integrity, property losses, etc. Such prohibitions concerned active causing of consequences in a short period of time (usually in seconds). Prohibitions had nothing to do with the social role of the actor. With the rise of the welfare state legal thinking we started to reconsider whether we should and could set to different societal roles also different societal responsibilities. The same kind of development is clear, e.g., in the law on damages, contract law, labor law and consumer protection. I call this a new conception of responsibility.

For example occupational safety, product liability, protection of environment, malpractice in health care, road traffic, other types of traffic, and the whole corporate criminal liability are examples in which criminal justice is not any more just a reactive tool to intentional violations already done, but also a proactive tool to steer the societal development and to make people to take better care. We ought to be much more skeptical of criminal justice system’s potential to “rule the world”, but as long as the national legislators and the European Union seem to rely on criminal law, the general doctrines of criminal law must take this fact into account.

Despite this change in legal thinking, the theoretical basis, systematical foundation and the special features in interpretations of criminal negligence and endangering have been left in the traditional criminal justice aside. Furthermore the whole doctrine of attempt, complicity and instigation concern only intentional crimes. Criminal law theory focused on its “favorite child”, in which someone caused alone and intentionally with an active deed immediate damage to another. A case in which the offender kills another by shooting to the victim’s head does not pose any insurmountable mission to criminal law doctrines.

Problems are obvious in cases which have been seen in criminal law as problems of “next door kids” from other areas of law. New criminal law doctrine should provide answers to cases where several persons carry different responsibilities in a corporation or other organization and where only a joint negligent omission to carry out duties results in endangering or violating of legally protected interests. In these situations, the time period between the failure to act and the consequences can be long, even several years or some decades. The definition of the offence does not necessarily require damage at all, but some degree of risk is sufficient to responsibility. Often the victim has himself contributed to his damage with negligence and conscious risk-taking.

These cases are in practice almost never so-called routine cases. The responsibility should be attributed to the person into whose sphere of responsibility the act or omission belongs. In the allocation of liability due consideration shall be given to the position of the said person, the nature and extent of his duties and competence and also otherwise his participation in the origin and continuation of the situation that is contrary to law.

This kind of “welfare state criminal law” has not replaced “liberal state criminal law”, although some so-called “risk society” (Risikogesellschaft) theories claim that to have happened. The hard core of criminal law is still in punishing the killers, abusers, rapists, drunk drivers and thieves. I understand welfare state criminal law as a new layer in criminal justice system which has been built on the solid bottom of liberal criminal law. The problem is that the new trends in criminal law do not always fit very well with the traditional ground structure and systematic of criminal law.

Rethinking of criminal law is taking place in several legal systems. The international discussion of the need to changes began in the 1970’s in Germany, where Claus Roxin and Bernd Schünemann opened a brand new way to read criminal law. Criminal law is criminal policy. It has societal functions as well as societal limitations. It has nothing to do with the “finalistic nature” of human behavior. Many others, such as Winfried Hassemer and Wolfgang Frisch, continued to “unmask” criminal justice definitions in Germany. The theory of “objective imputability” (objektive Zurechnung) became standard doctrine. In the USA George P. Fletcher wrote in 1978 “Rethinking Criminal Law”, the permanent value of which has continued to increase.

In Sweden Nils Jareborg developed a theory of “two kinds of negligence”, “två sorters culpa” already in 1977, but developed the theory especially in 1994 and 1995 with “Straffrättens ansvarslära” and “Straffrättens gärningslära”. Even though Jareborg’s starting point was not in criminal policy but instead in conceptualizing a human act, his results resemble very closely those achieved in Germany. In Finland the discussion was most active in the 1990’s when Dan Frände, Kimmo Nuotio and I wrote about the changes in criminal law theory. Frände had as his starting point mainly Jareborg; Nuotio’s and my background was more in the German discussion.

Today preconditions for a promising scientific discussion are fulfilled. There is sufficiently relevant theoretical literature. There is an obvious scope of application to the new way of thinking of social roles and social responsibilities. I have noticed that my version of negligence of an act (see below Thesis IV) fits surprisingly well to various kinds of hard cases in modern criminal law. Although the doctrine was developed to traditional negligent offences such as negligent homicide in connection to road traffic offences or occupational safety offences, it offers extremely useful tools to elaborate corporate criminal liability, environmental offences, tax offences, subsidy offences, book keeping offences and other kinds of economic criminality.

We don’t even have to start to discuss whether the increased importance of social roles in criminal justice is a result of changes in our fundamental values in society. The traditional atomic and static structure of responsibility simply does not fit to new kinds of legal obligations. The way to understand and perceive risks and responsibilities connected to various activities has changed. New problems require new basic concepts and systematic solutions.

Thesis II. Although criminal law is (quite obviously) exceptionally sensitive to fundamental rights and human rights, criminal justice research has been nearly blind to them. Also here it is essential to separate different questions from each other.

First, criminal law deals always with the question of whether and under what conditions the State has the right to deprive freedom or property in the form of punishment, when we take into account that punishing the offender does not repair the damages done with the crime. The classical restriction to the use of punishment is the principle of legality (no punishment without law, ECHR Art. 7), which gets all the time more dimensions. The principle has led to codification of criminal laws and definitions of the general part of criminal law in nearly all Western European states. It is taken more and more seriously in criminal proceedings in conjunction to right to a fair trial (ECHR Art. 6). It covers not only the trial phase, but also pre-trial investigation. It is not only applied to punishments but also to other similar legal consequences. It covers also strict liability and some administrative procedures. In one sentence: the principle of legality seems to be even more important today than yesterday.

Second, we always have to ask us whether criminalization is justified in order to protect and serve people’s rightful interests. Every threat of punishment is a limitation of liberty and rights, which is enacted in order to protect the liberties and rights of people. Surprisingly, this question of the relationship between criminal law and fundamental and human rights has not been clearly set in criminal law theory or constitutional law theory. Criminal law theory still often builds up on moral reflections on “mala in se” and “mala prohibita”. The first means wrongs in themselves and the latter one conduct that is prohibited by law without violating moral standards. Criminal lawyers can add that criminal law is the last resort, ultima ratio, when other legal mechanisms are not enough to steer the society. In most cases this is just wishful thinking when one gets to know the practices of legislative bodies in different States.

The question can be set more accurately. Concerning economic offences, we can ask, what kinds of limitations to protection of property, privacy and the right to work and the freedom to engage in commercial activity are allowed in order to promote, e.g., protection of nature, protection of safety at work or fiscal interests of the State. The same applies when we discuss hate crimes; what kinds of limitations to freedom of expression are justified in order to promote equality, right to one’s language, culture and religion and prohibit discrimination? In the end, criminal law is law and not only institutionalized moral reflections. Usually this argumentation leads to harmonizing interpretation rather than direct application of human rights statutes.

Fundamental rights and human rights provide a sufficiently uniform basis for legal thinking in a post industrialized western society. They crystallize the tension between classical liberalistic freedoms and welfare state requirements for the protection of the weakest in the society. An analytical approach to principles governing criminalization of behavior does not necessarily lead to brand new solutions, but in any case it leads to a more coherent argumentation of the role of criminal law. On the one hand fundamental rights and freedoms have to be taken seriously; on the other hand they impose obligations to each of us according to our social tasks and abilities.

This development was extremely fast in Finland after 1995 when the provisions on fundamental rights were reformed in the Constitution. Similar kind of development has recently started in Sweden, where Chapter 2 of the Constitution was reformed in 2010. Already now there are dozens of interesting cases from the Supreme Court concerning harmonizing interpretation of normal legislation and fundamental rights. Exactly the same happened in Finland 15 years earlier.

A third dimension of fundamental rights and criminal law is even less discussed than the aspects described above. Criminal law operates with rights and duties, but hardly ever with abilities and needs. Some legal theorists claim that the biggest challenge of modern legal thinking is to distance from the terminology of the Enlightenment. About 300 years ago lawyers stopped talking about people’s needs, because this was considered to be a paternalistic idea of justice with no legal safeguards and no legal certainty. To some extent this is true. On the other hand, in criminal law discussion the defendant’s rights and the victim’s rights often do not lead anywhere. More promising would be to talk about the offender’s and the victim’s needs. This would not undermine the “rights thesis” of Ronald Dworkin; rather it would emphasize more John Rawls’ broader perspective in the issue.

Thesis III. Criminal justice gets more frequently system impulses from other legal areas. It is often said that over the last fifty years legal system has split in smaller and smaller sub-areas which have less and less to do with each other. Nowadays it is not uncommon to notice that criminal law theory does not take into account constitutional law, law on damages, law on obligations or procedural law. The same fragmentation has happened in natural sciences. Instead of looking for common denominators one looks for distinguishing features.

This development has worried many legal theorists, including Jürgen Habermas, Klaus Günther and Robert Alexy. In criminal law Winfried Hassemer and Arthur Kaufmann have highlighted the classical hermeneutic requirement to understand larger entities and connections between problems in social sciences. Although natural sciences are dividing into smaller sub-areas, social sciences must try to continue to combine the details and to understand the overall picture of legal thinking.

I shall mention three examples. First, there are obvious tensions inside the general part of criminal law. The general part of criminal law must be seen as a whole, in which, e.g., the definitional elements of the offence can be read together with doctrines on an act and omission. If the result of a criminal case depends dramatically on whether we understand the behavior as one prolonged act or several atomic acts, there is something fundamentally wrong with our way of understanding the functions of general doctrines of criminal law.

Second, the special part of criminal law ought to be used much more in research on the general part of criminal law. For example, analysis of the objective duty of care or gross negligence floats in the air, if the requirements to take care are not at all connected to specific categories of offenses and negligence required there. We cannot speak of negligence in abstracto, without reference to behavior models we want to promote.

Third, we must be better aware of the relationship between criminal law and other areas of law. Lack of cross-sectoral legal research is a serious problem especially in a situation where the links between different fields of law can be expected to increase rather than decrease. In particular, criminal law and law on damages (tort law) seem to find each other again after a long time of isolation. For example, in the German functional criminal law theory the so-called “doctrine on protected interests” (Schutzintresse) is directly derived from jurisprudence on law on damages. Similarly, the law on damages seems to get influences from modern criminal law discussion.

Thesis IV. The objective elements are emphasized at the expense of subjective elements in the general systematic of crime. Without addressing the “great theoretical issues” of the structure of an offence we can understand a crime to consist of three stages. The act is generally prohibited if it fulfills the definitional elements of a crime (A hits B who gets hurt). The act may be exceptionally allowed or even encouraged in self-defense, necessity, officials’ use of force or other justificatory circumstances (A is defending himself or another, or is a police officer arresting a suspect). Even if the act is prohibited in general and in its circumstances, the offender may not always be blamed because of lack of intentionality or negligence, mistake of fact, or other element of personal responsibility (A exceeded the justified limits of use of force on self-defense, but acted under stress in a rapidly developing situation).

My point here is that several justificatory grounds, which previously were seen as exceptional justifications, are now seen directly as part of the definitional elements of a crime. Previously “allowed risk-taking” was considered in some circumstances to rule out responsibility. Now many theorists take as a starting point that only prohibited risk-taking can lead to responsibility. This is a logical result of the changes discussed above. Instead of asking whether causing of an effect is exceptionally allowed due to circumstances (justification) or whether the actor could have acted otherwise (guilt), we ask directly, whether the act and causing of the effect was allowed or not (definitional elements of crime).

Transition represents a change in the angle of vision, from which human behavior is perceived. Instead of focusing to the state of mind of the actor and his attitude towards the possible consequence, more essential is to ask, whether he was allowed to take the risks that eventually led to an effect. In practice freedom from liability takes place heuristically earlier and is more definite. In addition, with this method we can seriously pose the criminal policy question, what do we in fact prohibit with the crime definitions and what kinds of consequences we mean in the definition of an offence. In practice, especially negligent homicide and negligent bodily harm have to be called into question in many situations. The main point is that both the act and the causing of an effect have to be proven negligent in order to punish the actor. It is not enough that the actor has acted negligently and he has caused a consequence.

The first stage in understanding the negligence of an act is prohibited risk-taking. Traditionally allowed risk-taking has excluded criminal liability in exceptional cases. Here the matter is reversed. Prohibited risk-taking is a positive requirement of criminal responsibility. I could present various examples. In road traffic it is more natural to ask whether the driver took a prohibited risk than to limit freedom of responsibility to exceptional cases where the risks taken were allowed. In the same way we can ask directly what kind of environmental risks an entrepreneur may take or what kind of risks concerning the accuracy of the book keeping an auditor or a legal supervisor may take without becoming an accessory to the crimes committed in the company.

The second stage of the negligence of an act is the relevance of risk-taking. This requirement restricts criminal responsibility of effects which are too distant when evaluated from a normative perspective. In some cases a negligent act has indeed caused a forbidden consequence, but this consequence is something totally different than what the legislator wanted to avoid with the obligation to avoid risks. The Courts have treated these cases in various ways. Sometimes they question the causality of the act and the consequence. Sometimes they consider the predictability of the consequence. The values and goals, which are behind the criminal law provision forbidding risk taking, are not taken openly in discussion at all.

The third stage of the negligence of an act is the scope of the crime definition. The criminal policy needs for the criminalization have to be taken into consideration when assessing the allowed or prohibited nature of an act. In this huge group of questions belong, e.g., the victim’s own contribution to the consequence, the consent of the victim to the risk-taking and a joint risk-taking between the offender and the victim. These issues are not discussed enough in the Nordic countries and the Court practices are heterogeneous. Because the questions are fairly new, a scholar will have to make rather bold conclusions in legal science.

Only after we have concluded the negligence of the act, i.e. that (1) the risk-taking was prohibited; (2) it was relevant to the consequence occurred, and (3) the definition of the offence covers this kind of causing of a consequence, there is need to discuss the negligence of the actor or the “subjective guilt” of the actor. Also unconscious negligence (negligentia) is accepted as a form of guilt and the lack of ability to act otherwise is very seldom an effective excuse. Already this favors a system of criminal liability in which the negligence of an act is given more emphasis.

Thesis V. A criminal law scholar and a judge ought to be able to interpret his own legal culture. What should we expect from a good judicium, a good proceeding to obtain a qualified juridical decision? As argued above, the elements of the negligence of an act ought to be systematized and structured further. Especially new areas of criminal law ought to be analyzed in light of the general doctrines of criminal law. On the other hand, even developed text books and commentaries cannot help the Court unless legal dogmatic also takes into account different behavior environments and analyzes the typical cases that fall under the legal definitions. If the general doctrines of criminal law take seriously the above discussed (1) tension between liberal and welfare state law, (2) fundamental rights and human rights, (3) system impulses from other legal areas, and (4) the general requirement of the negligence of an act, it also must (5) change its own method.

Criminal law doctrines which emphasize criminal policy argumentation prefer objective teleological interpretation and problem-oriented research approach. The criminal code is not “applied” in a clinical way. The application of criminal law is always a goal-directed action. When the decision is ultimately based on weighting of several relevant factors in the case, their criminal policy weight ought to be argued openly. The principle of legality does not restrict this method, as it is mainly used to limit criminal responsibility to its essentials.

In this line of thinking the systematic solutions never alone lead to solutions in material law issues. Instead of conceptual studies, criminal justice doctrines must focus on the problems that it is supposed to solve. Modern criminal law theory is not trying to avoid legal problems but instead is looking for them.

Legal hermeneutics have a lot to offer to criminal justice methodology. One easy way of getting a good overall picture of the normative requirements in different cases is to take typical cases seriously. A classical short-coming of legal doctrines has been that instead of presenting main rules and the core of the scope of application of the rule, the research focuses to the exceptions and limits of the regulation. If a judge knows what the regulatory target of the provision is, she may also recognize whether the case before her belongs to the “core area” of the regulation or to its “outskirts”. In the last resort it is up to her to decide whether law has been violated or not.

In Roman law, good judicium meant sensitivity and vision to recognize the nature of legal questions. A judge as well as a scholar ought to be good interpreters of their own legal culture.