The Rationale for the Nullum Crimen Principle

Franz von Liszt* Downloaded from

[...] I have always wondered why friends and foes of the ‘new course’ did not immediately tell each other the only possible answer [to the question why not http://jicj.oxfordjournals.org/ act pre-emptively, as happens with lunatics etc., before the crime has actually been committed]: criminal law (and here I may perhaps be allowed to recall my old formulation) is the legally limited punitive power of the State. It is legally

* Franz von Liszt (b. Vienna, 1851, d. Seeheim, 1919) read law at Vienna, having among his

teachers Rudolf von Jehring (some of whose ideas he later introduced into criminal law). at Universidade Federal de Minas Gerais on August 20, 2014 He was professor of criminal law at the universities of Graz, Giessen, Marburg and Halle. In Marburg he founded the so-called Marburg school (or sociological school) of criminal law, asserting that crime must be essentially looked upon as a social phenomenon. In 1881, he established a new journal, the Zeitschift fu« r die gesamte Strafrechtswissenschaft.Healsosetup in 1888, with other colleagues, the Internationale Kriminalistische Vereinigung [International Criminological Association]. He then taught criminal law, international law and jurisprudence at the university of Berlin (1898^1917), was elected to the Prussian Chamber of Deputies [Preussisches Abgeordnetenhaus] (1908^1912) and then to the German Parliament [Reichstag] (1912^1917). His books include Lehrbuch des deutschen Strafrechts [Textbook of German Criminal Law] (1871, 26th edn., 1931); Der Zweckgedanke im Strafrecht [The Purpose in Criminal Law] (Berlin, 1882^1883); Das Strafrecht der Staaten Europas [Criminal Law of European States] (Berlin, 1884); DasVo« lkerrecht systematisch dargestellt[A Systematic Exposition of International Law ] (1898, 11t h e d n. , 1919); Strafrechtliche Aufsa«tze und Vortra«ge [Articles and Lectures on Criminal Law], 2 Vols (1905; ‘The Reconstruction of International Law’, 64 Pennsylvania Law Review (1916), 765 et seq). His theory of criminal law was based on positivism. He insisted that the purpose of criminal punishment was not to impose retribution [Vergeltung], as claimed instead by the leading criminal lawyer and stricter positivist, Karl Binding (1841^1920), but to bring about ‘special prevention’ by deterrence, with the consequence that the goal of society was both to improve social conditions and try as much as possible to re-socialize those who had engaged in criminal offences. In particular, in his view juvenile criminality should not be seen as a sub-category of general delinquency, but as a specific social problem to be dealt with primarily using social and educational measures. Franz von Liszt was a cousin to the musician and composer Franz Liszt (1811^1886), who was also his godfather. The text reproduced is from his essay, ‘Die deterministischen Gegner der Zweckstrafe’ [Deterministic Opponents of Purposive Punishment], 13 Die gesamte Strafrechtswissenschaft (1983) 325^370, at 357^368. Translated by Iain L. Fraser (the page numbers of the original text is indicated in square brackets in bold)...... Journal of International Criminal Justice 5 (2007), 1009^1013 doi:10.1093/jicj/mqm054 ß Oxford University Press, 2007, All rights reserved. For permissions please email: [email protected] 1010 JICJ 5 (2007), 1009^1013 limited in preconditions and content; legally limited in the interest of individual freedom. Nullum crimen sine lege, nulla poena sine lege. These two maxims are the citizen’s bulwark against the State’s omnipotence; they protect the individual against the ruthless power of the majority, against Leviathan. However paradoxical it may sound, the Criminal Code is the criminal’s Magna Charta. It certifies his right to be punished only in accordance with the statutory requirements and only within the statutory limits. And that brings the question that concerns us into the broad context of Downloaded from political development, which our German writers in particular seem so com- pletely to overlook. Bringing the interests of the whole community (Gesamtheit) into harmony with the freedom of the individual is the highest task of every ordered society. Each people and each epoch draws the boundaries differently. The age of Enlightenment brought us those two maxims, which have since http://jicj.oxfordjournals.org/ become the foundation of all our modern codes. For the liberal individualism of the 19th century, they were so much a matter of course that they were not at all looked at closer. But to the ears of the rising socialist generation, stressing common interests more than its predecessors, the word ‘liberty’ has begun to sound archaic, and they are shaking those foundations. And even if the hotheads (Stu«rmer und Dra«nger) have no idea what they are embarking on, if they do not even wish to understand that the collapsing edifice would bury

them too under its ruins, what they are doing is in line with the times, and it is at Universidade Federal de Minas Gerais on August 20, 2014 our duty to stand up and answer them. [357] [...] I adhere fundamentally to that Enlightenment tradition. And to the extent the future can be foreseen, I assert that the reshaping of legislation will also adhere to it. The punitive power of the socialist State too will remain legally limited in preconditions and content. The criminal codes will not be replaced by the single clause ‘those dangerous to public safety will be rendered harmless’. We shall continue to enumerate individually the preconditions under which alone State punishment may come about; the elements of the individual criminal offences will be defined in the code, analysed by scholars according to the juridically logical method, and applied by judges according to the same method. As before, we shall determine the nature and extent of punishment in statute and case law. Criminal law will remain, and with it criminal legal theory and the judicial administration of criminal justice.We shall burn neither the Criminal Code nor the commentaries; and the criminal-court judge will not lose importance, but gain greatly in it. I believe that, I hope that, in the interest of personal freedom, which I do not want sacrificed defencelessly to ‘social hygiene’; I have always openly called for that at the risk, and with the result, of being charged by the spokesmen of both camps with eclecticism. But admittedly, freedom is a relative concept, and in political questions there are no boundaries irrevocably drawn by logic. The prerequisites for the opera- tion of the State’s punitive power, i.e. the definitions of crimes, may be set wider or narrower, and as I have said elsewhere, I am more than delighted to do without the distinction between misappropriation and theft, between perpetra- tion and aiding and abetting, and many another refinement of our The Rationale for the Nullum Crimen Principle 1011 contemporary criminal law. [358] The nature and extent of punishment may, and should, take account ç differently than hitherto ç of the perpetrator’s state of mind [Gesinnung] as demonstrated by the deed [That]. But all these are questions that can be talked about. The call to reform penal legislation embodies a two-fold recognition: (i) that in future too we shall need the administration of penal justice; (ii) that the law in force needs reshaping. That this remodelling will come about in the direction of greater emphasis on the general interest is guaranteed by the whole development of recent Downloaded from decades. [359] [...]

Criminal Policy and Penal Law http://jicj.oxfordjournals.org/ [...] Crime, like any human action, is in my oft-stated view the necessary outcome of the partly innate, partly acquired individuality of the perpetrator on the one hand, and of the social and especially economic circumstances surrounding him at the time of the deed on the other. [...] Combating crime in its social roots is not the proper task of criminal policy. It is my firm conviction (and not only mine) [361] that a strong, focused social policy will stop up many a source of crime. Solving the workers’ housing question accordingly also interests criminologists, and engagement with this ques- at Universidade Federal de Minas Gerais on August 20, 2014 tion will be more instructive for them than the discussion of many a conceptual construction. But helping to solve it is not part of their profession. [362] [...] Crime can and should also, however, be fought in its individual roots, as a social phenomenon taking shape in the life of the individual. The weapons in this fight are many. One of them is State punishment. Only with it originates the concept of criminal policy. This policy is in my view the embodiment of the principles for fighting crime through the person of the criminal, by inflicting punishment and taking measures related to it. I cannot here go into what features distinguish punishment from other governmental measures to combat crime in the person of the individual. The important, difficult and hitherto barely initiated definition of the concept of punishment must be left aside here. In order to establish the relations between criminal policy and penal law we may start from the same cases in which we indisputably have to do with punishment. [...] Pending wiser advice, I should like to draw the following distinctions: (i) Criminal policy has first of all the task of precisely describing the cases in which protection through punishment by the State [364] has to step in, determining the means of punishment to be applied in general terms. Technical, logical legal science can provide valuable help here: in particular, it should formulate the statutory definitions of concepts. But the drawing up of a criminal code is in the first, and last, place an act of criminal policy. Even our opponents will not, on calm considera- tion, care to dispute that. 1012 JICJ 5 (2007), 1009^1013

(ii) As long as our penal legislation holds to the principle, already discussed in its high political importance, of nullum crimen sine lege, the finding that the elements of a criminal offence are present as the precondition for the State’s punitive power to operate will be an exclusively judicial act, coming about in accordance with legal principles. This, as already mentioned, indubitably guarantees the continued existence of criminal law. Criminal policy has nothing to do with this. That is something

acknowledged by my side as indisputable. Downloaded from (iii) Things are quite different with the second of the maxims mentioned above. Nulla poena sine lege means it is for statute to define the content and extent (nature and amount) of the punishment to be applied in the individual case. This principle, which if followed consistently requires

exclusively absolute threats of punishment, has already broken down in http://jicj.oxfordjournals.org/ our contemporary legislation. Today’s criminal codes leave the judge the choice, with a few very rare exceptions, among a large number of amounts of punishment, and mostly also between two or more types of punishment. Within the statutory range of punishment, it is the judge, not the law, that determines the punishment. The system of a statutory range of punishment is not basically challenged by us, even if the most varied reforms have been proposed, while retaining the existing basis. [365] [...] at Universidade Federal de Minas Gerais on August 20, 2014 Pursuing the idea of specificity in punishment, however, in my view further requires that the judicial determination of punishment be, at least in certain cases, not definitive; that instead the effect of imprisonment, i.e. the attainment or otherwise of the object of punishment in the individual case, should determine the duration of punishment. This requirement too, in current law realized partly, albeit highly unsatisfactorily, through ‘conditional release’, can in my opinion be brought into harmony with the idea of retribution, notwithstanding all the claims to the contrary. In this very important area of determination of punishment, then, opinions still fluctuate up and down violently and confusedly; but reaching agreement is not out of the question. (iv) As soon as enforcement begins, the function of penal law is over and criminal policy comes into its own. Even the supporters of retributive punishment do not deny that the enforcement of punishment must pursue certain goals. How these objects are to be formulated is a matter of indifference for the purposes of our present study. [366] If I am not wrong, then things stand thus: (i) penal legislation is unquestion- ably a matter for criminal policy. (ii) Simplifying the concepts of the crime laid down in the law, the conviction must be pronounced in accordance with fixed legal rules, and on the basis of a logical and legal conclusion. (iii) For sentencing we, in at least apparent contrast to the classical school, ask that criminal-policy considerations should prevail. (iv) It is these considerations that necessarily and irrefutably play the major part when it comes to execution of the sentence. The Rationale for the Nullum Crimen Principle 1013

The real area of dispute thus lies in the sentencing. But even here the prevailing tendency has already made far-reaching concessions to us, in the sovereign prerogative of mercy, and most particularly in conditional release (parole). We too could see our way to moderating our demand in the light of legislation that would meet us halfway. But these practical concessions, this gratitude for part payment with extension of time on the residual claim, do not mean any, even partial, abandonment of the points of principle. [...] I should be quite content were the reforms we call for made initially only in relation to juveniles Downloaded from and the incorrigible. In this connection, the name this child is to be given need not matter. This is of course the charming aspect in our opponents’ conduct: they are happy as long as [367] the old, honourable labels are conserved. In the ‘punishment’of the habitual criminal the ‘balance between guilt and expiation’ must not be http://jicj.oxfordjournals.org/ exceeded; but our opponents have nothing to object to lifelong, or at any rate very long lasting, ‘security measures’ following service of the sentence. Two years’ imprisonment for an incorrigible vagrant is not allowed by ‘retributive’ justice; but five years of the far more painful workhouse our opponents would readily concede to us. Let us call it security measures and workhouse, then; letustakewhatwecanget. Let me not be misunderstood. From my fundamental positions, this amalga-

mation of a short and unimpressive ‘punishment’ and long-lasting drastic at Universidade Federal de Minas Gerais on August 20, 2014 ‘correctional post-arrest’ is and remains a laughable absurdity. But we are asking for a reform of the legislation, and that cannot be secured without compromises. Yet no compromise will be easier for me than dropping a particular name. Those who value the bottle more than the wine may cheerfully pour the new wine into the old bottle. [368] [...]