Criminal Law Theories of conduct

Question 1

Offences of commission: the theory of conduct and the baseline of criminal liability

Answer 1

• principle: a person must have been responsible for his/her actions in order to be held criminally liable and to be punished
• A subject is someone who acts, and an object is someone or something that is acted upon
• only subjects can incur responsibility

Question 2

The causal theory of action (ghost in the machine)

Answer 2

• criminal act consists in a willed bodily movement
• based on the 19th-century dualist concept of man as creatures of animus and corpus
  animus = the human will —> seen as the cause of physical action as willed bodily movements
• In English penal system the theory is still accepted (GER + NL not anymore)
• the content of the will plays no role

Criticism: Omissions do not fit into the description of conduct (human action as willed bodily movements) + unworkable in the context of corporate wrongdoing (many penal systems impose punishment on corporations for criminal harm caused by them)

Question 3

The teleological theory of action

Answer 3

• the content of the will (the aim) constitutes an element of the very concept of action
• action was not blind, it was “seeing“
• nature + meaning of human action cannot be understood unless one also knows the actor’s purpose

e.g. copying banknotes: joke vs trying to betray people
Problem: obstacles in regard to omissions and negligence liability as it is difficult to claim in these instances that the person acted in a goal-oriented way

Question 4

The social theory of action: the context in which the act occurs is significant

Answer 4

• criminal conduct needs to be interpreted in the social context in -
  which it occurred
  meaning is not fixed, it is socially negotiated
• it conceives conduct as a social rather than a natural phenomenon
• conduct is regarded as a part of social pattern which determines its relevance for the attribution of criminal liability
• the emphases on the social context of the conduct paves the way for the attribution of criminal liability without the involvement of physical movement e.g conduct of corporations to be perceived as relevant for the attribution of criminal liability
• prevails in GER + NL penal systems
• E: more and more acceptance in the evaluation of actus reus

Question 5

Loss of physical control

Answer 5

• All penal systems agree that conduct in which there is no voluntary control cannot qualify as criminal relevant conduct
• This excludes conduct from the realm of criminal law in which a person is for instance used as an instrument or cannot control his or her actions due to the absence of consciousness
  —> cases of vis absoluta (= person did not will the harmful conduct)
• Actions which do not reflect deliberate control over the conduct are reflexes e.g someone kicks his doctor during an examination of his knee-jerk reflex
• Spasm also do not qualify as criminally relevant conduct
• The conduct of unconscious or sleeping persons cannot trigger criminal liability