Journal of Criminal and Criminology Volume 54 Article 3 Issue 3 September

Fall 1963 Systematized Richard M. Honig

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Recommended Citation Richard M. Honig, Criminal Law Systematized, 54 J. Crim. L. Criminology & Police Sci. 273 (1963)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CRIMINAL LAW SYSTEMATIZED

RICHARD M. HONIG

The author is Professor Emeritus in Goettingen University. He has recently served as Guest Pro- fessor in the Seminar for Comparative Criminal Law of the New York University Law School. Dr. Honig has also recently served as Guest Professor in the Institute of Foreign Criminal Law of Freiburg University. In this article, the author reviews the second edition of Professor Jerome Hall's book entitled Gen- eral Principles of Criminal Law. Dr. Honig observes that the made by Hall in this work to systematize criminal law represents a trend new to the United States but of long standing in European countries. He further observes that Hall endeavors to base his "principles" upon "many of the ulti- mate ideas of Western civilization," thereby inviting comparisons between the basic ideas of his sys- tem and those of the German theory of criminal law. Accordingly, Dr. Honig analyzes and appraises the elements of Hall's system, weighing them critically with the corresponding German theories.-E rToR.

For many decades European criminal law has century, by Feuerbach, 4 Abegg,5 K6stlin, s Hd.lsch- been dominated by theoreticians who, in coopera- ner,7 Berner,s and Hugo Meyer,9 to mention only tion with the administration of justice, have en- the most influential criminalists, the leading "set deavored to build up systems of the criminal law of ideas" is not predominant or dearly enunciated. of their countries. Most recently a similar trend But the late nineteenth century systems of crim- is observable in American criminal law. Latest inal law, such as those of von Liszt 0 and Binding," thereof is Professor Jerome Hall's book are unmistakably composed of basic ideas. The General Principles of Criminal Law.' same holds true of the systems constructed in the 1 twentieth century by Beling," Max Ernst Mayer, 3 I. PROFESSOR HAIL'S ENDEAVOR Mezger, 4 von I-Iippel,"5 Sauer, 6 and Wezel." That As the title indicates, Professor Hall's book is 4 ANSELM VON FEUERBACH, LEHRBUCH DES GE1MEI- NEN IN DEUTSCHLAND GULTIGEN PEINLICHEN RECHTS meant to present a theory and system of criminal (14 editions, from the beginning of the 19th century law based on generally valid and generally ap- until 1847). plicable principles. Hall has made this perfectly -1I. FR. H. ABEGG, SYSTEM DER CzNmAL-RxHTcs- WISSENSCHAT (1826). clear by informing the reader that "the most im- 6 C. REINHoLD K6STLIN, SYSTEM DES DEUTSCHEN S RaAREcrTs (1855). portant functions of a theory of criminal law are 7 to elucidate certain basic ideas and organize the HUGO HXLSCHNER, SYSTEM DES PREUSSISCHEN STRAFREcHTs, Teil I (1858); DAS GEMEINE DEUTSCHE criminal ... ."2 STRAERECHT, Bd. I 8 (1881). ALBERT FRIEDRICH BERNER, LEHRBUcH DES DEUT- A. His Continental Referents SCHEN STRACxcTs (18th ed. 1898). 9 HUGO MEYER, LEHRBUCH DES DEUTSCHEN STRAF- REcHTs 0 (5th ed. 1895). This starting point must be borne in mind to ' FRANz VON LISzT, LEHRBUCH DES DEUTSCHEN avoid misinterpreting Hall's statement "that the STAFREcHrs (25 editions from 1882 until 1927). major shortcoming of the nineteenth century pro- 1KARL BINDNG, DIE NOR EN UND I=Ra UEBER- TRETUNG (1st ed. 1872, 3d ed. 1918). fessional literature on criminal law, both Anglo- " ERNsT BELING, DIE LEHmE VOM VERBRECHEN American and Continental, was the lack of sys- (1906). tem."' 3 To be sure, in the numerous German "3MAX ERNST MAYER, DER ALLGEJEINE TEIL DES DEUTSCHEN STRAZcHTs (1915). systems on criminal law written in the nineteenth 14 EDMUND MEZGER, STRAFRECaT, EIN LEHRBucH (3d ed. 1949). I Indianapolis: The Bobbs-Merrill Co.; 1960. Pp. "5ROBERT VON HiPPEL, DEUTScHES STRArREeHT xii, 642. $9.00. (Bd. I. 1925, Bd. 1H 1930). Hereinafter, where page numbers, only, appear in 16WHE=L SAUER, AL.GEMEINE STRAREIcHTs- the footnotes, the reference is to this work. r.EmH (3d ed. 1955). 2 P. 2. 1 HANS WELZEL, DAS NEUE Bun DES STRAFIEcnTs- 3Pp. 11-12. SYSTEMS (4th ed. 1961). RICHARD M. HONIG [Vol. 54

Hall does not mention them may be because these doctrines are based on juridical logic only. Among criminalists built their systems on basic ideas and the principles, it is the principles of punishment principles as integrated in the German criminal and legality which, according to Hall, do not refer law, whereas Hall strives to construct his system "to essential elements of ''."' The supporting "of a set of ideas by reference to which every penal points of the doctrine of insanity must be sought law can be... explained."' 8 in psychiatry and in philosophical perspectives.28 Hall encourages the reader to compare the basic The perpetrator's responsibility may be more or ideas of his system with the categories presented less influenced by voluntary and involuntary in- in the German theory of criminal law, when in toxication, intoxication psychoses, chronic alco- the preface to the first edition, reprinted in the holism, and physical injuries. 29 To what extent second edition, he points out that his principles the judge should accept the opinions of medical "include many of the ultimate ideas of Western experts is left to his own determination. As to civilization."10 kind, degree, and extent of punishment, criminal- political considerations are of great importance. B. His InterdisciplinaryReferents Where free determination and considerations of Hall derives his principles from the union of this kind are involved, the criminalist's opinion rules and doctrines. The significance of the princi- rests on his personal convictions. Therefore, I shall ples consists in their being "the ultimate norms only briefly refer to Professor Hall's opinions as of the penal law."20 Each of the three notions- far as the above problems are concerned. principles, doctrines, and rules-"serves important Hall's ideas on punishment (chapter 9), mental distinctive functions."'2 The rules "define particu- disease (chapter 13), intoxication (chapter 14), lar and fix the respective punishments and and criminology and penal theory (chapter 16) treatment."2 Doctrines are not to be understood are instructive and far-seeing. In chapter 9, for as theories in the usual meaning of this term, 8 but instance, he stresses that the administration of are mostly concerned with "unusual or abnormal penal law has to take into consideration retributive states of mind or situations, '24 to wit insanity, and utilitarian ethics. Hall thus supports the in- infancy, intoxication, , , , clusive theory," noting with approval that this 25 attempt, , , and . theory "has been gaining ground in recent years.""1 Metaphorically speaking, the doctrines are to be He observes that the courts "are attending to the placed intermediately between the "rules" as the gravity of the harm, the personality of the offender, "narrowest and most numerous" propositions the public interest, the available peno-correctional and the "principles"; being of "the widest gener- facilities, and so on.""2 However, as Hall stresses, alizations" the latter are at the other extreme of to strengthen this sound trend the inter-depend- the line. Their subjects are seven ultimate no- ence of penal theory and criminology has to be tions: , act (effort), the (fu- recognized"l "the various disciplines concerned sion) of -mens rea and act, harm, , pun- with criminal conduct, law and punishment should ishment, and legality.2" To clarify the difference be viewed as a single inquiry .... "'34 between principles and doctrines, I may add that Likewise, psychiatry, law, and legal science 2 5 principles relate to elements of the rules that are should find a common basis. The leading example part of the definition of the crime in question, of this need is to be found in the problem of re- whereas doctrines are concerned with circum- sponsibility. According to Hall it is the M'Naghten stances that are to be taken into consideration in Rule which provides guidance to the jury, al- the application of the rules to concrete cases. though its reform seems to him absolutely neces- However, not all principles are equally important sary. The wording of the Rule, as used today, does in relation to the definition of crime, and not all not take into account "the integration of all the 18P. 1. 27p. 18. 19 P. vi. 28 Pp. 454-55. 20 p. 19. -2 Pp. 533, 554. 21P. 17. 30Pp. 302, 304. 22p. 17. 31P. 308. 21P. 17 n. 32. "P. 306. 24 p. 19. " P. 601. 25P. 17. "P. 621. 26 P. 18. 3"P. 454. CRIMINAL LAW SYSTEMATIZED principal functions of personality." 36 The rational of punishment to the essential elements of the function, to which alone the Rule refers, must be crime. The situation, however, is different with joined by the volitional function. 7 Thus, the jury regard to the principle of legality. Hall notes should be asked "(1) whether, because of mental aptly that one meaning of this principle is "that disease, the defendant lacked the capacity to no conduct may be held criminal unless it is pre- understand the nature and consequences of his cisely described in a penal law."'4' In other words, conduct; and (2) whether, because of such disease, this principle demands that in order to be punish- the defendant lacked the capacity to realize that able, conduct must correspond to the elements of it was morally wrong to commit the harm in ques- the definition of the crime in question. Hall ex- tion."3 If instead of the restrictive word "know" presses this idea by saying: "[Wihen a legal writer the wider terms "understand" and "realize" are speaks only of harm, conduct, punishment and used, the Rule takes "full account of the volitional so on,... what he probably means to say is legally function of personality."39 proscribed conduct, legally proscribed harm, 4 7 In the chapter on "Intoxication," Hall severely legally prescribed punishment, and so on." Thus, censures the courts' hostility toward the drunken it is precisely the conformity of the elements of offender, as seen particularly in their readiness to the conduct to the elements of the crime as defined imply voluntary drunkenness. 40 Hall finds further by law that underlies the significance of the prin- fault with the courts for their frequent failure to ciple of legality. Consequently, it is not conceivable take seriously the of and coercion to me why, despite the demand of such conformity, in becoming drunk,M4 and for their tendency not which in the German doctrine is called "Tatbe- to recognize temporary insanity produced by standsmdssigkeit," the principle of legality has no drunkenness as destroying responsibility.4 Es- relation to the essential elements of crime. pecially noteworthy is Hall's suggestion that differ- ent legal consequences should apply as between B. Conc-urrence drunken offenders without prior experience with Hall puts the relation between imes rea and the influence of alcohol upon them, and those conduct under the principle of concurrence, i.e., whose previous experience should have forewarned the fusion or integration of viens rea and act."3 them. 43 That mens rea has to coalesce with conduct has, II. THE PRwnciPxES as Hall notices, contributed to the development of criminal law. For instance, by bailee Turning now to Hall's principles as based solely and became recognized as special on juridical logic, I must regretfully confess that I crimes against property because the perpetrator differ from Hall's interpretation of all the main made up his mind to appropriate property of problems essential to any system of criminal law. another person only when he was already in pos- session of it. A. Legality and the EssentialElements of Crime But there are border cases, particularly Jackson As mentioned above, the principles of punish- v. Commonwealth, 100 Ky. 239, 38 S.W. 422 (1896), ment and legality are, according to Hall, unrelated on which Hall's discussion leaves me dissatisfied. to the essential elements of the crime.4' That In the Jackson case, the defendant, a medical punishment is not related to such elements is evi- student, had given his pregnant girl friend a large dent. As a reaction against a violation of pro- dose of cocain with the intent to kill her, and then, hibitory or imperious legal norms, punishment under the mistaken belief that she was dead, he should correspond to the gravity of the violation;4" had severed her head from her body. This decapi- but there is, indeed, no direct and specific relation tation, only, caused her death. Hall views the 36 p. 521. defendant's conviction of as a miscarriage 7P. 522. of justice; he regards the decision as a violation 23P. 521. of the principle of concurrence. "[T]he mens rea," s9Pp. 521-22. 40 p. 533. he states, "did not concur with the actual killing." 41P. 540. "[There was no to kill or injure a human 42P. 542. - Pp. 556-57. 46P. 28 4P. 18. 47P.25. 4P. 315. 48P. 18. RICHARD M. HONIG [Vol. 54 being at the time of the decapitation.1 49 This court was entitled even to impute this knowledge certainly is true. But is "concurrence" only meas- if, as Hall points out, "a reasonable man in the urable by the dock? Should not the "fusion" or given situation would have been aware of it." 52 "integration" of inens rea and act be regarded A reasonable man, however, would have been under the viewpoint that the act was done with aware of it not merely before or at the embarka- the intention to produce the harm in question? tion, but also during the voyage. The inens rea German attains satisfactory results of the people responsible extended over the dura- by making use of the concept "doluts generalis," tion of their duty to care for their passengers. This taking primarily into consideration the essential does in fact correspond to the opinion of the Eng- and immoral quality of the conduct. This, indeed, lish and American as well as the German crim- is, if I understand Hall correctly, the requirement inalists. Hall's stigmatization of the court's view implied in the principle of concurrence.50 Then, as "fiction" seems to me consistent with his re- however, not the question of time but the substance fusal to recognize the dogma that an of the perpetrator's guilt, his intention concomitant is punishable only in case there was a legal duty with his conduct or his indifference to the risk to take action. We shall return to this problem involved, is decisive. under heading D. It seems to me that Hall interprets the principle of concurrence in this way in cases of culpable C. Harm forbearance. United States v. Van Schaick, 134 Fed. 592 (S.D.N.Y. 1904), involved a shipwreck in The preceding argument leads to the clarifica- which many passengers were drowned due to the tion of the term "harm," one of the seven "ultimate ' ' harm to be "a central defectiveness of the lifebelts. The captain and notions. 3 If we understand the owners of the boat were found guilty of man- notion of penal theory,"-" it should follow that it slaughter. "The nature of the offense," said the consists of endangering or violating one of those court, "precluded a single act." The duty of the ultimate values the protection of which is the aim captain and the owners to take care for the safety of criminal law. This obviously is its meaning when of the passengers "was continuing." Thus the Hall defines it as "loss of a value," and when it is "stated in terms of intangibles such as 'harm' to court found the forbearance of the culprits to be a continuing crime. Hall, however, is of the opinion institutions, public safety, the autonomy of 55 re- that "there is no need to resort to a fiction of 'con- women, and so on." However, Hall does not tinuing' forbearance in order to satisfy the prin- strict the notion "harm" to intangibles, but ap- ciple of concurrence.... If an offender inten- plies it to physical injuries as well. When he speaks tionally or recklessly creates a dangerous situation of "harm" as "the end sought" or "the focal point between criminal conduct.., and the punitive which later causes a proscribed harm, liability 6 attaches to his conduct, i.e., to the 'concurrence' sanction"" he seems to have the physical object of the nens rea and the manifested effort ('act'), of the perpetrator's action in view. The importance not to that of the mens rea and the harm."' 1 I of harm in this sense is underscored by the state- don't see why this should hold true only where a ment that "harm... is the fulcrum between dangerous situation is created. When the perpetra- criminal conduct and the punitive sanction" and tor aims at injuring or killing another person and that the elucidation of this relation "is a principal obtains his purpose by a turn of the causality he task of penal theory." had not foreseen, as in the Jackson case, he like- This ambiguity, which has existed in American wise should be fully responsible for the harm. criminal law for a long time, is disadvantageous Besides, I do not think the court took "resort to a to the systematization of the criminal law. It re- fiction of 'continuing' forbearance in order to sat- sults from a general neglect to recognize a differ- isfy the principle of concurrence." Rather, the ence between crimes resulting in factual injuries case in question involved a continuing crime. Since to other persons and crimes consisting merely of those responsible for the welfare of the passengers the perpetrator's act. In German criminal law this acted recklessly, they knew, according to the mean- 12 P. 121. ing of this term, that they took a chance. The 53P. 18. 'P. 213. 4 P. 189. 6 P. 217 5OP. 186. 5r P. 213. lP. 188. 7P. 213. CRIMINAL LAW SYSTEMATIZED

difference leads to the distinction between voluntary overt movement and... voluntary Erfolgsdelikte, crimes causing factual effects, and forbearance, may be termed an 'act'." 6 scldichte Tdtigkeitsdelikte, crimes committed and Since the manifested (or further) effort is the consummated without such effects. If Hall had materialization of mets rea, which comprehends recognized that these two groups of crimes are of both "relevant cognition, i.e. knowledge of the equal significance for the goal of any criminal law, material facts, and an internal effort, 'movement he would have seen that American criminalists do of the will,' "17and since every effort is "positive not "list exceptions" and add "confusion" when and operative,"' any omission, "in a sense other they state "that in some crimes there are harms, than voluntary forbearance," is, according to but in other crimes there is only conduct."-" Hall, "fictitious."69 Consequently, Hall concludes, negligence, in the sense of inadvertence, is not D. Act (Effort) included in the notion "conduct." There Temains, Punishment is justified only when harm, under- however, I submit, the question whether this is stood either as "end sought" or as "loss of value," sound penal theory. To be sure, in cases of negli- is caused by criminal conduct. Professor Hall gence the perpetrator does not aim at something starts his chapter on "Criminal Conduct" by re- unlawful. His intention is not directed to the in- porting briefly on Austin's definition of conduct: jury caused by his negligence. However, his failure "Act is a voluntary movement. It consists of to consider the possibility that he might injure muscular motions which immediately follow the someone indicates that he is wanting in that degree wish for that movement.""9 Hall contrasts this of attention which the law expects and demands strict concept with the very wide definition of of everyone. His conduct does not correspond to that carefulness and consideration which everyone Salmond: "'[A]ct' includes (1) the offender's 0 bodily movements or omissions and (2) the ac- owes to his fellow-citizens2 This fact justifies companying circumstances and (3) the conse- punishment in case negligence causes harm. quences."6 If we ask which of these contrasting As to the punishment of omissions, Hall refers concepts is to be preferred, we must take into con- to English decisions of the early nineteenth cen- sideration that intention and volition are, accord- tury. Under these decisions, an omission was ing to Austin, "inseparably connected," whereas, punished if, according to the circumstances, "a according to Salmond, "intention is not a necessary legal duty to act was definitely recognized."' For condition of legal liability.... 61 To agree with the second half of the nineteenth century, Hall Salmond means, as Hall stresses, "to include mentions Macaulay and Stephen who pointed out negligent, i.e., inadvertent, behavior" in the notion the rules regarding punishable omissions. Both 612 "act. This, however, is, as I will show later, stressed that the omission of "benevolent moral- contrary to Hall's concept of criminal conduct. ity" is not sufficient to justify punishment. They Furthermore, since the term "act" is ambiguous, felt there must be a relationship between the omis- as it covers not only overt bodily movements, but sion and the positive law in order to stigmatize also doing nothing, Hall prefers the term "effort," the omission as a violation of a legal duty to act2 which refers to "both voluntary movement and This train of thought corresponds to the defini- [voluntary] forbearance."" "[I]n criminal for- tion of punishable omissions to be found in the bearance the offender 'uses' active external forces Comments of the German Draft of a Criminal Code by not interfering with certain effects of their of 1960. The Comments dearly state that the operation."' 4 In relation to the realization of the moral duty to prevent a danger or injury does not effort, Hall distinguishes between the "internal create a legal duty to act. Rather, such duty must effort of intention" and the "manifested effort be established by the law itself before the inactive which actualizes the mens rea in the external person may be held responsible for not preventing world."0 This "manifested effort, which includes the consequences of his inactivityY3 The thought 66p. 184. 6sP. 220. 67P. 183. P. 171. 63P. 180. o0p. 172. 9P. 180. 61 p. 173. 70Cf. WELzEL, op. cit. supra note 17, at 35 et seq. 12P. 174. 71P. 192. P. 177. 7P.193. c4P. 254. 'Cf. BEGRTNDu0G zou Erwur Enms STRAF- 61P. 179 GESETZBUCHES 116-17 (1960). RICHARD M. HONIG [Vol. 54 expressed in the Comments represents 100 years private law to the criminal law is sometimes one of learned deliberations on the problem of crimes of reference by the latter to the former, in the causing harms and committed by omissions sense that it is forbidden to omit doing certain (Unechte Unterlassungsdelikte). In codified form it acts which are defined in the private law." 8 I can- is contained in §13 of the authorized German not see, however, why Hall states: "This does not Draft mentioned above. imply that the penal law is enforcing private law, Hall, however, is of the opinion that "it requires but only that the latter proscriptions are also only brief scrutiny... to disclose the superficiality penal laws." 9 Hall substitutes here proscriptions of that theory." "The assertion that an omission of the private law for its precepts. Only the latter is criminal if there is a legal duty to act ... is a are in question. The omission of precepts prompts mere tautology if 'legal duty' means a duty im- criminal prosecution if a person by not acting ac- posed by criminal law."74 This is certainly true, cording to them causes tangible harm that is since if omissions are prohibited by criminal law punishable. it is implied that the criminal law itself demands In sum, I don't think that Hall has succeeded certain actions. But the English decisions cited in shaking the doctrine that punishment of an by Hall 75 dealt with harms occasioned by violation omission that caused tangible harm is conditioned of duties to act imposed not by the criminal law, by the violation of a legal duty to act. For this but by private law-such as the duty to provide reason, I consider Hall's statement untenable sufficient food to children, to an apprentice, or to "that, so far as the principle of legality is con- a servant. Harms of this kind would not have oc- cerned, there is nothing distinctive about criminal curred if the persons who had a legal duty to act omissions." 80 had fulfilled their duties. This is the reason why a Having come to this conclusion, Hall asks: "Can person who, by remaining inactive, violates such criminal omissions be distinguished from overt duty is responsible for the harm caused by his criminal conduct by reference to some other sig- inactivity. nificant criterion, e.g., as regards causation?" 8' If a In response to arguments like this one, Hall father stands by while his child drowns, he is maintains that the above theory proves to be liable, "whereas the stranger is not liable although fallacious, no matter whether "it is intended to the physical facts and the chain of physical causa- mean that whenever a civil law requires the doing tion are identical in both cases. This indicates of an overt act, failure to do it is criminal," or "to that physical causation, alone, does not determine mean that an omission is not criminal unless a legal liability. There must also be something else; and duty is also imposed by civil law. ' 76 He notes that in criminal omissions that is illegal in- "failure to file a tax return, to keep a road in re- action, one might say, wrongly allowing the forces pair, and to perform official duties are common of physical causation to operate when one, bound instances of the lack of any relevant private legal by law, could have altered certain of their con- duty."7 sequences, i.e. precisely the human factor." 8 Nobody should question this, since these ex- It seems to me that the problem of causation amples, like others added to them, concern plain finally opened the door for the admission of the omissions (echte Unterlassungsdelikte), appertaining legal duty to act. For, what else could be implied to the realm of public law. Thus, Hall may cor- by "bound by law" to alter the consequences? rectly assert that these cases are "unrelated to Or do the words: "precisely the human factor" private law." But as plain omissions these cases contain a reservation or restriction? do not cause tangible harms proscribed by criminal In the section "Policy of Criminal Omissions" law. They do not prove anything against the Hall speaks of the "particular duty" of parents dogma that inactivity is punishable when a person to their children, of the "special obligation" of a by private or public law was obliged to prevent the railroad employee, of a "particular obligation" of harm. one who agrees to look after an aged person. It is I agree without reservation with Hall's state- not the moral obligation, says Hall, which creates 8 ment that "the relationship of certain rules of 7 p. 194. 7P. 74P. 193. 194. 75 P. 192. 80P. 194. 76 p. 193. R1P. 195. 7 P. 194. 2P. 196. CRIMINAL LAW SYSTEMATIZED

such duty or obligation, since from the viewpoint in the introduction to the chapter on "Causation": of morality the bystander is no less obliged to save ".... inens rea and the defendant's external move- the child than the father. "The essential difference, ments are required... the conduct, thus formed, it is suggested, inheres not in moral obligation, but is the cause of penal harm."8 9 in mores, in the public attitudes regarding the These statements raise the question: Is the char- respective parties .... 3 acterization of the conduct as "manifestation of In opposition to this concept, I am of the opinion the inens rea" necessary to explain the production that it is not the mores, i.e., the public opinion, but of criminal harm or only its punishability? the law in its entirety which creates particular Hall seems to be well aware that to consider duties or special obligations on the basis either of inens rea as an element of the legal cause contra- private or public relationship. If harm, forbidden dicts the generally demanded separation of causa- by criminal law, is the consequence of a failure to tion from guilt: "The temptation to exclude mnens perform a duty or obligation, then the failure is rea from problems of causation arises from over- punishable as a crime because the law-not the concentration on mechanical causation, resulting mores-demands action. from a failure to appreciate the distinctive meaning of the principle of causation in penal law."9 As E. Causation the fundamental of penal law the principle of In cases of omissions, it is not physical causation inens rea is, according to Hall, influential "in deter- as such, as Hall points out, but inaction allowing mining the meaning of 'cause' in the teleological 91 the forces of physical causation to operate which sense."1 determines liability. Thus, in law the term cau- The stress Hall lays upon the term "cause in sality "has a teleological significance that dis- the teleological sense" and its relation to inens rea tinguishes it from mechanical causation."' 4 This induces me to find behind Hall's conception a necessarily leads to the question of the nature or fundamental thought I tried to develop some time 2 essence of the "cause-in-law" or "legal cause." ago.Y I believe that in order to comprehend the After displaying various meanings of the term legal relationship between conduct and harm it is 85 "cause," Hall analyzes in his chapter on "Causa- not enough to recognize human conduct as a tion" the three aspects under which a legal cause co-nditio sine qua ion relative to the harm in issue. is to be comprehended: (1) Conduct must be the This fact is recognized by the so-called selective coanditio sine qua wi the harm in issue would not theories, the best known of which is the Adequance have occurred; (2) the condition must have "effec- Theory. According to it, conduct is a cause-in-law tively, i.e. substantially" contributed to the harm; if it usually creates the harm in issue. However, 93 (3) finally, to be a legal cause, the necessary and Sauer has pointed out that by judging the con- substantial condition must be the expression of duct according to its fitness to create the harm in "a relevant imns rea, i.e., necessary, efficient end- issue we are no longer occupied with causality as seeking."86 "In sum," says Hall, "a cause-in-law such, but with a totally different, teleological and means a cause which is not only a necessary, sub- normative problem. For, while the subject of stantial factor, but also one that includes certain causality is the ontological relationship of the '' conduct which expresses a required mzens rea." conduct to harm, any selection among the con- At the beginning of his book Hall points at the ditions that come into question as causes of the dependence of the notion "legal cause" on the harm is based on a judgment as to their general conception of mens rea: For the definition of mens fitness to produce such harm. By entering this rea to include inadvertence or negligent behavior axiological question we leave behind the realm of "not only clouds the meaning of ines rea and ontological contemplations. penal harm, it also greatly obscures the causal Needless to say that nothing else but human problem in penal law."'' 3 Even more distinct is the conduct isthe condition whose general fitness to connection between causation and guilt asserted wP. 247. 90P. 282. P. 210. 91P. 295. N P. 196. ' 85P. Honig, Kausalildt und objektive Zurechnung, in 248. FESTGABE fr REiNHARD VON FRANiK, Bd. I, p. 174 8GPp. 282-83. el seq. (1930). 7 P. 284. 93WIHELM SAUER, GRUNDLAGEN DES STRAFRECHTS 83P. 3. 443 (1921). RICHARID M. HONIG[ [Vol. 54

produce harm is in question, and that conduct must conduct. By these standards the legal significance be a manifestation of the human will in order to of the conduct as such is determined. Whether the create legal consequences. The question whether defendant could be expected to .act in conformity the conduct was generally qualified to create the with them is a different question. This is the ques- harm in issue leads to the alternative whether a tion of guilt. certain conduct in relation to its result, to wit the harm in issue, can or cannot, from an objective F. Mei-s Rea, Negligence and point of view, be considered as "end-directed," Criminal guilt is established when man's con- i.e., as "zweckhaft gesetzt." In sum, only if an in- duct is the actualization of his mens rea, i.e., of dependent axiological judgment follows the onto- that state of mind which includes "knowing or logical sine-qua-nwn-judgment are we able to judge believing, with reference to the material facts and, whether the defendant's conduct was the cause- also, the internal effort of intention." The im- in-law of the harm in question and, if the answer mediate and inevitable logical consequence of this is in the affirmative, to proceed to the question definition offered by Hal' is the exclusion of of his inens rea. negligence from guilt. For "negligence implies With regard to my refusal to connect the ques- inadvertence, i.e., that the defendant was com- tion of causality with the defendant's mens rea, I pletely unaware of the dangerousness of his be- feel considerably supported by Professor G. 0. havior."" "Between the extremes of intentionality W. Mueller's criticism of Hall's theory as discussed and negligence lies recklessness." 9 Thus, inten- in Mueller's "An Appraisal of Jerome Hall's Stud- tionality, recklessness, and negligence are the ' 94 ies in Jurisprudence and Criminal Theory. In three basic mental positions relative to the de- these Studies, published in 1958, Hall introduced fendant's criminal liability for his conduct. the defendant's nwies rea as a third element of the In the case of intentionality, the perpetrator cause-in-law. Mueller objected by pointing out that intentionally commits a morally wrong act;"' he "meCns rea... is too far removed from causation has chosen to cause a proscribed harm by his to be part thereof by construction." Rather, it is conduct.1 0' The reckless person, on the other hand, the "foreseeability" which "is properly subsumable does not intend to cause harm. However, he does under the primary principle of conduct." "There- not mind increasing "the existing chances that a fore, prediction or foreseeability becomes properly proscribed harm will occur"1i2 In this sense, the third limitation on the causation inquiry. "recklessness connotates awareness.' 'i Professor But causation, even in this sense... ,does not Hall realizes perfectly well that the limitation of suffice for the imposition of guilt or blame." the notion "recklessness" is not in line with the Professor Mueller's and my conceptions of the definition of recklessness as given in §500 A.L.I. cause-in-law differ in the final analysis only in so Restatement, . He is of the opinion that it "is far as Mueller stresses the foreseeability of the plainly opposed to the meaning of recklessness" consequences, whereas I suggest that the objective that someone who "was not aware of the fact that suitability of the conduct to produce the harm in he was unduly increasing the risk of harm,... was issue is the ultimate criterion of the relevancy of nonetheless reckless if the 'reasonable man' would the conduct, if other conditions beside the conduct have known the risk." By the definition of the as such contributed to produce the harm. I should above §500, persons are held reckless, even though presume that Hall would not have taken pains to they were only negligent.9 4 It is true, says Hall, prove mens rea to be the third element of the cause- that "recklessness resembles negligence in that in-law if he had not taken as self-explanatory but both include an unreasonable increase in the risk had scrutinized the conditions under which the 95 of harm; both fall below the standard of 'due predicate "substantial cause" can be attributed ' care). 7i10 On the other hand, it is a "distinctive to one of several causes or the predicate "efficiency 6 97P. 179. or adequacy" to a necessary cause. Predicates 9"P. 114. as these are objective standards based on common "P. 115. opinion and experience, just as foreseeability of the 10' P. 83. "'1P. 113. consequences or the objective suitability of the 1"2 P. 112. 9434 IND. L.J. 206 (1959). 1 P. 116. "P. 283. "4P. 121. 96 P. 292. 1 P. 115. 1963 CRIMINAL LAW SYSTEMATIZED

state of awareness" which intention and reckless- conscious of their negligence: bewusse und unbe- ness have in common, and which is missing in the wusste Fahrliissigkeit. This distinction underlies case of negligence. "[U]nless it is determined that the definitions of "recklessly" and "negligently" the defendant knew he was increasing the risk of in §2.02 (2) (c) and (d) respectively of the Model harm, it cannot be defensibly held that he acted Penal Code. As we remember, Hall excludes negli- recklessly."' 0 gence from the mens rea, since inens rea requires This determination, however, apparently can be awareness, and it is "awareness of increasing the compensated by the supposition that the defendant danger" which separates recklessness "completely knew he was increasing the risk of harm: "[T]o from the genus of negligence.""' Such awareness find a defendant reckless," Hall maintains, "the is, as Hall admits, presumable and imputable in jury needs to be informed that.., they must find cases of reckless conduct. I submit that awareness that his conduct fell below the standard of 'due becomes fictitious if it can be presumed and im- care' and that the defendant knew he was increas- puted to the defendant, subject to the application ing the risk of harm; and that they are warranted of the reasonable-man standard. I don't see any in so finding if they find that a reasonable man in reason why the same should not be the given situation would have been aware of available in cases of negligence if a reasonable man it.,,107 under the given circumstances would not have The bearing of this rule of procedure on the sub- acted as did the negligent defendant. For "a person stantive law was dearly expressed in Coynnwn- acts negligently.., when he should be aware of a wealth v. Welansky: "Knowledge of facts on ac- substantial and unjustifiable risk.""10 Thus, Hall's count of which a reasonable man would have seen standpoint that recklessness creates criminal the risk, is equivalent to the knowledge of the risk liability, even if awareness of increasing the danger itself."' 03 In other words, the awareness, the in- was not determinable, while negligence, on the dispensable element of the recklessness, need be other hand, does not, is in my opinion untenable related only to the material facts. If this awareness from the viewpoint of juridico-logical deduction. is established, the rule of procedure, as displayed To support his position, Professor Hall en- by Hall, permits the supposition that the de- deavors to prove that even the "traditional ethical fendant knew he was endangering other people by ground-the insensitivity of these harm-doers to his conduct. This supposition depends, to be sure, the rights of other persons"m-is not strong on the further assumption that a reasonable man enough to justify punishment of negligent harm- would have seen the risk in the given circum- doers. We may restrict ourselves to the discussion stances. of only the most important arguments. However, if this does satisfy the requisite of the Hall does not believe that punishment "will "awareness of increasing the danger," then the sensitize thoughtless individuals to the rights of question arises as to what the liability of the de- other persons." "[T]he legal apparatus cannot fendant is based upon if he did in fact not know assure such a dose association between negligence that he by his conduct endangered other people. and pain as to provide any support for the use of If the defendant knew he endangered other people, punishment on this ground."'m But it is obvious his liability rests on the fact that he acted never- that this argument could also be used against theless. If, however, he was conscious only of the punishing crimes intentionally committed. facts increasing the risk, not of the risk itself, he Furthermore, Hall points out that there is no is liable because he should have been conscious of evidence that punishment or the threat of it may increasing the risk if a reasonable man would have deter negligent harm-doers."3 However, it is not been aware of it. so much deterrence but correction that is aimed The contrast between a person who disregards at in the punishment of negligent persons. More- the risk he has taken and a person who was capable over, punishment for negligent harm-doers should, of thinking of the risk, but was in fact not aware according to Hall, be greater than usually provided, of it, corresponds to the distinction made in Ger- since "the cause of negligence may be so deeply man criminal law between perpetrators who acted 09P. 128. with conscious negligence and those who were not nOMODEL PENAL CODE §2.02(2)(d) (1962). 105P. 120. "I P. 138. '1P. 121. " Pp. 138-39. '0s316 Mass. 383, 55 N.E.2d 902, 910 (1944). "' P. 139. RICHARD M. HONIG [Vol. 54 rooted in the personality structure of the inad- to guard against the injury he complains of .... ,,2 vertent harm-doer as to require a great deal of Thus, one is permitted to conclude, Woodrow punishment to alter his habits. 114 Since in this was punished because he did not take that care a connection Hall reproaches the legislators of Con- prudent man would have taken in conducting his tinental criminal codes for employing an "incon- business. gruous makeshift" it must be remembered that a Similar deliberations hold true for early Ameri- crime committed by negligence is generally con- can decisions. Hall refers especially to Common- sidered to be deserving of milder punishment than wealth v. Farren (1864), in which the court em- a crime done intentionally, because a man causing phasized among other viewpoints the importance harm intentionally to other people a priori ap- of protecting the community against the common pears more guilty than a man acting negligently. adulteration of food and the reasonableness of Finally, if inadvertence is rooted in the person- imposing the risk upon the dealer and thus hold- ality structure, the attitudes of a person insensitive ing him "absolutely liable."' Later on, Hall with regard to creating danger are, according to remarks very pertinently that many of the public Hall, not matters of his choice; "hence there is no welfare regulations "suppose a continuous ac- warrant for punishing him on... traditional moral tivity, such as carrying on a business. This im- ground."' ' I should reply that everyone responsi- plies that general standards regarding such con- ble for his conduct is obliged to watch and educate duct are important rather than isolated acts."' himself and, for this reason, he is liable for his Nevertheless, these public welfare regulations laisser faire, laisser aller. "do not," according to Hall, "provide any justi- fication of penal liability at the present time."'m G. Mens Rea and In opposition to this conclusion, I would submit In chapter 10 Hall deals with the problem of the question: Is it not just these general standards upon which the decision depends as to whether strict liability, i.e., "liability to punitive sanctions the defendant is liable? To reproach someone with despite the lack of nmens rea."16 Since criminal law negligent conduct means that he is blamed for is based on moral culpability "strict liability can- not having observed that care which a prudent not be brought within the scope of penal law."" 7 man is expected to observe. It is the difference Thus, a "careful analysis of the established law of between the defendant's conduct and the conduct strict penal liability" appears justified."' Since there are numerous public welfare offenses of a prudent man upon which the reproach is based. More specifically: With regard to negligent proscribed without any allusion to mens rea, mens conduct-the usual form of public welfare of- rea, it is concluded, is not made a necessary basis fenses-the defendant is blamed because he did of punishing them. Hall espeoially calls our atten- not realize that by his conduct he violated certain tion to those proscriptions against "knowingly" or "wilfully" doing certain acts, where then "follows regulations. Hall himself admits "that, despite the avowals of strict liability, intent and negli- a provision omitting the above terms, and usually gence actually play some essential part in such fixing a lesser penalty."'19 "It is this sort of pro- offenses."' 2 "[T]herefore," he continues, vision," Hall adds, "that usually comprises strict "it may be urged... that they are designed to catch liability." Does this form of provision necessarily the willful and the negligent; they are not intended lead to the conclusion that the legislators estab- to penalize those who are faultless. But the statutes lished strict liability, or did they perhaps think of are so phrased as to include the innocent, and negligent behavior? these are caught occasionally as a result of in- Hall himself calls forth this question by quoting 25 the decision Reg. v. Woodrow (1846), in which the competent administration."' court said: The defendant (a tobacco dealer) It seems to me most regrettable that Hall deems was "bound to take care ....In reality, a prudent these arguments untenable, although, later on, man who conducts this business, will take care he concedes "that, from the very beginning of 114P. 139. 120 P. 327. P.P15 138. 121 P. 328. 1P. 325. "2P. 331. 17 P. 336. 13p. 331. 118P. 326. 14p. 342-43. 119P. 326. 12 P. 343. 1963] CRIMINAL LAW SYSTEMATIZED the modern law of strict liability, many judges the specific crimes," their meaning "must be have suggested that the defendants were negligent determined by incorporation of the relevant doc- 4 and that, had they used due care, the violation trines in their affirmative significance."" 126 would not have occurred.' The starting point of Hall's train of thought, to Deliberations like these lead, in my opinion, to wit: most of the doctrines concern unusual or the assumption that the judges would not have abnormal situations, has its parallel in the German found the defendants guilty if their conduct had doctrine of the "negative Tatumstiinde," i.e., not evidenced their negligence. Consequently, negative material circumstances, such as self- decisions in which defendants were sentenced defense, legitimate commands, , and so without any evidence of their negligence should on. The legal effect of these circumstances is that be frankly acknowledged as erroneous. the action is not illegal, and therefore no crime Perkins has remarked that "the so-called 'strict is committed. The effects of Hall's doctrines, in liability' means much more strict than usual, but contrast, are most heterogeneous: Insanity and it does not mean that the doing of the prohibited infancy absolutely exclude criminal capacity; act requires conviction under any and all cir- intoxication and mistake may exclude responsi- cumstances."'' - Obviously, much stricter than bility; coercion and necessity exclude free will, a usual is a defendant's liability when with regard basic element of nens tea; attempt and complicity to his profession or special licenses he is expected are modalities of committing crimes; solicitation to observe special care in his dealings with other and conspiracy are delicta sui generis. These people or in possibly endangering them by his structural and functional differences of the sub- conduct. The standard of his negligence is not the jects of the doctrines, on the one hand, and Hall's conduct of a prudent man in general, but the proposition, on the other hand, repeated time and conduct of a conscientious man of his profession again, though phrased differently, "that law is or licensed activities. fully stated when the doctrines are added to the rules," provokes the following question: How is III. TEE Docrm~ms the unexceptive requirement of the "incorpora- Passing on to Hall's doctrines, we must re- tion of the relevant doctrines in their affirmative member that they are not to be understood as significance" to the rules to be carried out when theories in the usual meaning of this term, but their effects on the meins rea are not as obvious as as "propositions more general than the rules but in the cases of insanity or infancy? lacking the extensiveness of the principles."'m Their function is to complete the specific crimes. A. Complicity, Solicitation and Conspiracy "[Only after the doctrines have been added to Complicity is by reason of its nature of affirma- the rules has the penal law, i.e., the definitions of tive significance. Added to a specific crime it all the specific crimes, been fully stated." 19 Thus, marks this crime as an exception from the rules "a complete definition of specific crimes must which by imputing the act to one person only always include the doctrines."'130 However, "the "provide definitions of the 'normal' criminal rules provide definitions of the 'normal' criminal conduct.., in 'normal' situations." Thus, by conduct of 'normal' persons committing specified incorporation of complicity, not "normality" of harms in 'normal' situations."'' The doctrines, the situation is determined, but just contrariwise on the other hand, are mostly concerned with an abnormality. "unusual or abnormal states of mind or In the administration of justice as well as in situations."' Therefore, "the terms of the rules textbooks solicitation and conspiracy are justly are to be given the meaning required by the doc- conceived to be delicta sui generis. Nevertheless, a trines in their affirmative significance."' In other negative significance of these terms may be recog- words, since "the rules do not completely define nized in relation to the crimes solicited or con- 1"P. 357. spired befbre these crimes are committed. It is in 12 PEKxxMs, CzmmnAL LAW 695 n. 12 (1957). their commissions in which the affirmative sig- "'P. 17. n9 P. 19. nificance of solicitation or conspiracy may be 13o P. 21. found. However, when the solicited or conspired 131p. 21. crime is committed, the conspiracy is no longer "' P. 19. 2 P. 22. 1P. 21. RICHARD M. HONIG [Vol. 54

(as in former days) considered to be merged in it as "a mere formality."1 3 This is understandable but is punished independently of it, while solicita- in view of their variety. However, the criterion tion takes on the meaning of aiding and abetting, "commencement of consummation" means the and the solicitor is punished as principal. Thus, same as the formulae "comnencement d'exncution" there is no incorporation of solicitation or con- in the French penal code and "Anfang der spiracy in the crime committed. They only may Ausfiihrung" in the German penal code, both be useful as evidence. Hall does not explain how terms implying the beginning of the punishable the doctrines of complicity and solicitation and action. This criterion serves as a very usable conspiracy are to be incorporated "in order that yardstick, since it covers any action which due complete definitions of crimes be provided." to its natural coherence with the specific crime appears to be part of it. Hall prefers the criterion B. CriminalAttempt of the "proximateness" of the harm done to the Likewise I could not find any indication for intended ultimate harm. 9 Hereby he shifts the completing the definitions of specific crimes with center of gravity of the problem from the act as regard to the doctrine of criminal attempt. Hall such to its effect. However, not only the attempt defines the aim of this doctrine in the section on but also the preparation of the crime endangers "Rules and Doctrine" in chapter 15. It "empha- social interests and is in so far harmful. Since under sizes the common features of all the harms de- this viewpoint there is, as Hall admits, "no es- scribed in the rules defining specific criminal sential difference between states of preparation 1 35 .' These specific attempts are, if I and criminal attempts,"'4 0 the boundary between understand Hall correctly, consummated crimes. preparation and attempt would depend solely Consequently, there is no reason for making use of upon the question of the degree of danger brought the doctrine of criminal attempt so that the defi- about by the preparation. For determining this nitions of these crimes be "fully stated." But degree there is no other gauge but the free estimate "these descriptions are particular instances of of the judge. ' 6 the doctrine." This presumably means that the With regard to the so-called impossibility of an doctrine is to be applied to all attempts adjudi- attempt, Hall dismisses the distinction between cated in accordance with a general definition of factual and legal impossibility, as to which differ- attempt, as for instance that given in article 1, ent legal consequences were generally recognized section 2 of the Penal Law of the State of New in American adjudication until Faustina v. State York. If in these cases the doctrine of criminal of California, 345 P.2d 543 (1959). Hall rejects attempt is applied in its "affirmative significance," this distinction as untenable, since the "view of i.e., not indicating an abnormal situation, the 'legal impossibility' has no greater validity than 4 consummated crime would be put in the place of the earlier theory of 'absolute impossibility'."' ' the crime attempted. But it is the consummated He prefers as the criterion the "apparent objective crimes which, save the exceptions of the "specific risk of harm."'' But the probability of success attempts" mentioned above, are described by must have appeared high.'4' "This suggests that the rules. Therefore I cannot conceive what the the reasonableness of the effort provides a limita- doctrine of criminal attempt in its affirmative tion."' 4' In other words: The principle of legality significance might contribute to the complete is observed and punishment is justified if the description of the crimes in question. perpetrator reasonably deems those external facts In the section on "Preparation and Attempt" existent which would lead to the desired effect if in chapter 15, Hall reviews the difference between they were in fact existent. Decisive is therefore preparation and attempt. He reminds the reader the nens rea of the perpetrator manifested by his of the efforts to define the attempt by descriptive conduct which would have caused the effect if the terms such as "moving directly toward the com- circumstances had been congruous to those he mission of the offense," "the commencement of believed to be existent. consummation," "direct movement, tending 1np. 3' 579. immediately," "proximately," and so on."' "1P. 583. Hall seems to be inclined to dismiss these criteria 140p. 583. 141P. 590. 13 P. 575. 4 P. 591. 136 P. 575. 3 '. 592. 137P. 578. '4 P. 592. 19631 CR9MINAL LAW SYSTEMATIZED

This standpoint corresponds to the so-called juris, Hall's starting point is the demand of reli- 15 "subjektive Theorie" of the former German ance upon legal authority. Individual opinions Reiclisgericht, not recognized, however, but vigor- and non-authoritative declarations are of no ously opposed by almost all German writers on validity. This is, according to Hall, "the rationale criminal law. In limiting responsibility by de- of ignorantiajuris neininem excusat."' According manding "reasonableness of the effort," however, to this rationale ignorance means lack of coinci- Hall makes allowance for an objective criterion dence of the defendant's opinion "with the sub- relative to danger. Hereby he recognizes the dis- sequent interpretation of the authorized law- ' tinction between dangerous and non-dangerous declaring official."", The recognition of the formal conduct within the realm of impossibility. I wonder principle of legality implied in this statement how far Hall's criterion of the "reasonableness of appears justified if we admit that the criminal law the effort" is compatible with his statement: expresses the moral ethics of the community "There are no degrees of impossibility and no which are meant to serve as everyone's guidance. sound basis for distinguishing among the con- For "the simple morality that is relevant to crimi- ditions necessary for the commission of the nal law" can be understood by any normal adult.i 4 5 intended harm.' It is this understanding, not "knowledge of formal penal law" that is at the bottom of the axiom ' 4 C. Mistake "ignorantia juris neminem excusat." If the perpetrator's conduct is blameworthy arguments concerning the doctrine of Hall's because it is contrary to the simple morality of the are oriented on the contrasting legal prov- mistake criminal law, the blame must be limited to errors "ignorantia facti excusat" and "ignorantia erbs relative to proscriptions of the criminal law. neminem excusat." The rationale of the first juris Ignorance of private law is not inconsistent with the insight that "the proverb is explained by the ethical principles expressed by the rules of reference to morality of an act is determined by criminal law and is to be "treated as a mistake of including his the actor's opinion of the facts, fact."155 beliefs."' ' Thus, mistake of fact is a erroneous Two objections may be permitted: First, cases provided that the actor's viens rea was defense of fraud and of bigamy often give rise to ardent due to the fact that he did not doubt the lacking discussions as to whether the mistake in issue was of his act. This should be conceded if his morality avoidable or not. In borderline cases the simple "as they reasonably ap- perception of the facts, morality of criminal law is often clouded. Secondly, to him,"'47 would exclude criminal liability. peared if a mistake of private law is treated as mistake of appeared By the requirement: "as they reasonably fact, a proviso should be made that the mistake cautious to him," the behavior of a "reasonably is not excusable if it was avoidable by greater is introduced as a criterion. and prudent person" care on the part of the defendant. If the actor's behavior does not correspond to this Incidentally, Professor Hall's standpoint re- standard, i.e., if he acts unreasonably, he is "crimi- minds us, as in the case of the impossibility of an nally liable despite the complete lack of criminal attempt, of the position taken by the former This means, in my opinion, that his intent."'' German Reicksgericht, which distinguished be- responsibility for an act done intentionally, but tween mistakes concerning criminal and non- without the care a reasonably cautious and pru- criminal (ausserstrafrechltlichent) law. Only the dent man would have shown with regard to its consequences, is, in the last result, based on the latter mistake was declared excusable. However, blame of negligence. Hall's qualification: "mis- the distinction did not prove satisfactory and take of fact is a defense if, because of the mistake, therefore has been considered untenable by al- mens rea is lacking"'49 should be accepted under most all German scholars. After 1945 it was the proviso that the mistake was not caused by relinquished by the Bundesgerichishof, the suc- negligence. cessor to the Reichsgericht. In his contribution to the discussion on error 150P. 382. 145p. 589. 1 P.383. "12 P. 383. '4' P. 363. 147p. 366. 13 P.413. 143P. 367. 14 P. 413. '49 pp. 365-66. 15 Pp. 394, 399. RICHARD M. HONIG [Vol. 54

D. Necessity and Coercian of selection is fair."' If this would be so, the person chosen to be sacrificed would not have the right to subjects that remain to be mentioned The last defend himself! As to coercion, the distinction, are necessity and coercion. ''1 among the doctrines he says, breaks "down completely. 8 Never- of opinion relative to the There is no difference theless, Hall admits "that the coerced person is of these terms: People acting under meaning justified in certain situations and that the coercer persons innocent of necessity or coercion harm is nonetheless liable.""' On the other hand, Hall Furthermore, there is no doubt any wrongdoing. realizes that "if coercion is a form of justification, about such actions exists that a cause for arguing then, in the usual mode of analysis, the coercer necessity) only if the physical force (in the case of should not be liable...."160 of coercion) was not or compulsion (in the case There can be no doubt that he is liable, because so that the free will of the person under irresistible, in the first place he uses another person as his Questionable remain pressure was not excluded. instrument, and in the second place the act of the Do necessity and coercion the legal consequences: coerced one is not justifiable, but only excusable. justify the acts that harm innocent people, or This conclusion, however, appears to Hall un- them? Since this question is commonly only excuse tenable since the coerced person remains according of discussion, I am sur- placed in the foreground to American law responsible for murder, in Canada preliminary statements that prised by Hall's even also for , assisting in , "[E]xcuse and justification are pertinent and useful 6 , , and other offenses.1 ' These ex- But they are fallacious and in procedure .... ceptions, in which the coerced person is under the misleading when they are applied as notions of 56 obligation to disregard the danger imminent to penal theory.' substantive himself if he is asked to inflict grievous harm onto excuse are terms indicating the Justification and innocent people, necessarily leads, in my opinion, under pressure, as they consequences of acting to the conclusion that the doctrine of coercion do for instance in cases of self-defense and com- includes the requirement of evaluation; in other mand or order. In all such cases there is no punish- words, the coerced person may cause some small ment, provided the act was in fact justified. I harm to an innocent person in order to prevent not know of any reason more stringent than would grievous harm to himself, but he is not permitted which would lead the exclusion of punishment to cause equal or more grievous harm to an in- to the conclusion that necessity and coercion are nocent person. To Hall, on the contrary, those substantive criminal law. parts of the system of exceptions prove that coercion does not create an strange to me to find the Incidentally, it seems excuse; for "excuse implies complete exculpation, concerning justification and essential arguments as in insanity or infancy, no matter what harm 12, "Necessity and Coer- 1 excuse not in chapter was committed."'' Against this argument I may in chapter 7, "Harm." If it is the pres- cion," but submit that the effect of coercion in modifying or coercion on account of sure exacted by necessity criminal responsibility depends on the foresight a person is not held responsible, then it is which of the legislators or on the opinion of the court, acting, not the harm caused by it, which is his whereas insanity and infancy are circumstances justified or excused. This becomes evident when which absolutely exclude responsibility by reason A, who wants B to be killed, instigates for instance of the lack of criminal capacity. Thus, any inference to attack C, and C kills B in legitimate self- him from the latter circumstances to the former relative as his instrument, A is respon- defense. By using C to their effectiveness is not persuasive. sible for the death of B because A's conduct is not committed justified, but punishable as a purposely CONCLUSION crime. As to the question under which conditions ac- The reader will agree that in reviewing Hall's tions under pressure are justified or only excused, General Principles of Criminal Law I have re- Hall seems to reject this distinction a limine. He mained within the limits of immanent, criticism. refers approvingly, if I am not mistaken, to the 157p. 434. doctrine "that a very high probability of complete "1P. 235. destruction by physical forces is a justification for 1 P. 236. M'P. 235. sacrifice of some to save some, provided the method 161 P. 235. 162 P. 235. 156P. 233. 1963] CRIMINAL LAW SYSTEMATIZED

I deemed such criticism necessary since juridical Questioning the cornerstones of Hall's system logic led me to results different from the author's means, of course, questioning the concinnity of statements relative to the scope of his principles, his system as such. Nevertheless, the author's and contrary to the thesis concerning his doctrines, endeavor to build up a system of criminal law summarized on page 21, that "A complete defini- undoubtedly is meritorious. It will prove to be a tion of specific crimes must always include the steppingstone and an incentive for further de- doctrines." velopment of the system of criminal law.