Abstract
This paper tries to explain against the backdrop of the history of German criminal theory why and in which way the fault elements are seen differently in Germany and in Anglo-American countries. It shows how Feuerbach’s psychological model of guilt convinced Feuerbach’s German contemporaries in the 19th century that the suppression of the actual will to violate a criminal prohibition must be the reason for punishment. For such deterrence theory, direct intention is the central criterion of imputation. There is no room for extensions like indirect intention. The resulting gap was filled by representatives of the will theory who created dolus eventualis as a criterion of imputation. The paper then concentrates on the gradual change which dolus eventualis has undergone due to the development of a ‘normative’ concept of guilt, i.e. a perception of guilt as a failure to live up to certain expected standards. It is outlined how the normative concept of guilt has facilitated Welzel’s decision to transplant dolus from the guilt level to the level of definitional elements. Transferring dolus to the definitional level led to a further change from a primarily voluntative to a cognitive content of the notion. It became appropriate to view dolus eventualis as acceptance of the prohibited state of affairs. For reasons of clarification the terms dolus eventualis and recklessness are compared in an annex to the paper.
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Notes
Of course, the notion of indirect intention in the Anglo-American countries today is much narrower than in Germany in the early 19th century and therefore does not meet with the same difficulties as its counterpart in German history, cf. Hyam [1975] A. C. 55; Moloney [1985] 1 All ER 1025; Nedrick [1986] 1 WLR 1025. The courts in England and America can afford to restrict indirect intention in that way because they also have the fault element of recklessness at their disposal which German law does not know even today; on the terminology of recklessness as compared with dolus eventualis, see Sect. “Appendix” below.
Cf. Löffler (1895, pp. 149–162), according to whom the doctrine of dolus indirectus was not fully developed before the canonical lawyer Didacus Covarruvias treated the subject, Covarruvias a Leyva (1592, In Clementis quinti constitutionem: si furiosus, rubrica de homicidio, relectio § primus num. 1, § quartus num.1, 2, 9, 10) who in turn cites the moral rule of Aquinas (1885, vol. II, prima secundae, quaestio 20 art. 5).
Paul Johann Anselm Ritter von Feuerbach (1775–1833) who also was the father of the wellknown philosopher Ludwig Feuerbach.
He drafted the Bavarian Penal Code of 1813 which in its time could be considered as a quite modern legal code. The abolition of torture in Bavaria as a means of obtaining evidence in a criminal process can be credited to Feuerbach.
Feuerbach (1804, pp. 193, 241).
A notable exception is Hegel (1821, §§ 118–120).
Cf. Lesch (1999, pp. 57–74).
There is no established term in English for the level of Tatbestand. I shall therefore keep the term ‘definitional’ for the designation of this level in the paper.
Art. 44 Bavarian Penal Code of 1813: “If it has been proved that someone has intentionally carried out an act from which follows a certain unlawful result directly and necessarily according to generally known experience, it has to be considered also as proved that this result of the act was intended, except if the opposite can be shown by clear proofs.” (“Wenn jemand mit erwiesener Absicht eine Handlung vorgenommen hat, woraus, nach allgemein bekannter Erfahrung, ein bestimmter gesetzwidriger Erfolg unmittelbar und notwendig zu entstehen pflegt, so ist für erwiesen anzunehmen, dass dieser Erfolg ebenfalls beabsichtiget gewesen sei, wofern nicht durch klare Beweise das Gegenteil dargetan werden kann.”).
von Hippel (1908, p. 458).
Cf. von Hippel (1930, p. 302).
See the references at von Hippel (1908, p. 488 footnote 3).
E. g. RGSt 33, 6; 72, 44 (RGSt = Reichsgericht, criminal cases, cited with volume and page).
von Hippel (1908, p. 488).
Feuerbach (1800, p. 130).
Feuerbach (1800, pp. 132–133).
In order to keep the German notion of “Vorsatz” and the narrower English notion of “intention” apart, I shall use the term “dolus” in this paper as a translation of “Vorsatz” and not in the Anglo-American sense of fraud or intentional aggression.
He has „the will to bear the consequences of the action in the event that they come about” („der Wille, die Folgen der Handlung eventuell auf sich zu nehmen”), RGSt 33, 4; von Hippel (1908, p. 499).
I refer to the old German definition of dolus indirectus. I am aware that the definition of oblique intention in modern English law is much narrower.
RGSt 33, 6; 72, 44 (alte Einwilligungstheorie—the old approval theory). The Reichsgericht partly used formulations which already anticipated the turn of German criminal theory towards a cognitive concept of dolus which in my opinion entirely waived the voluntative requirement. Thus RGSt 16, 28, for example, held that “the perpetrator acted with dolus eventualis if he performed the action notwithstanding his correct assessment of the danger”. However, as soon the Reichsgericht found any indication for an “inner disapproval of the result”, the court showed that it still clung to the old approval theory.
After the second world war, the Bundesgerichtshof took an important cognitive turn in a murder case, BGHSt 7, 363, “leather belt case” (BGHSt = Bundesgerichtshof, criminal cases, cited with volume and pages), in which the victim was strangled with a leather belt in order to break his resistance so that he could be bound and robbed more easily, but in which the perpetrators also thought it possible that the victim might die as a consequence of the strangling which they accepted although they thought it to be an extremely unwelcome result. The Bundesgerichtshof held that the perpetrators had dolus eventualis when they killed the victim because they accepted that he might die as a consequence of their strangling and yet did not desist from their action. This means that the court uses a criterion identical with Welzel’s taking into account the materialization of the danger. The Bundesgerichtshof only performed this cognitive turn with respect to crimes of murder, manslaughter and violation of the bodily integrity of a person, and the court may still apply the old approval theory for economic crime, for example. Although the leather belt case was widely welcomed by German scholars, new doubts arose whether the Bundesgerichtshof really had meant to redefine dolus eventualis in the leather belt case when the court had to decide a case connected with AIDS, BGHSt 36, 1. The risk of contracting the HIV virus during unprotected sexual intercourse was estimated as relatively low yet significant at the time of this verdict. The defendant in the Bundesgerichtshof’s case had been aware of the danger which did not keep him from having unprotected sexual intercourse with the victim. The court held that the defendant had not acted with dolus eventualis although he had estimated the danger of death because of contagion to be significantly high. The court assumed a natural threshold that needed to be overcome by a perpetrator in order to decide to take a human life and that the defendant in the concrete case would not have overcome this threshold. Therefore, the court concluded that only a dangerous violation of the victim’s bodily integrity could be imputed to the victim, but not his death. The grounds of the AIDS case BGHSt 36,1 can be reconciled with an approval theory as it had been endorsed by the Reichsgericht, but not with the leather belt case of the Bundesgerichtshof because overcoming the threshold to take a human life could be identified with the inner approval required according to the Reichsgericht for the imputation of causing the death of another person to someone as carried out with dolus eventualis.
If a utilitarian justification of the sort is excluded that killing a person may be justified in case of saving the lives of a greater number of persons by the same act.
Both, the ground for justification and the ground for an excuse, have been included in the current German Penal Code under sections 34 (rechtfertigender Notstand) and 35 (entschuldigender Notstand). The excuse of entschuldigender Notstand is limited insofar as the perpetrator cannot invoke section 35 of the German Penal Code as an excuse if he is the holder of an office or if special duties have been imposed on him. Thus, section 106 German Sailor Law imposes special duties on the captain of a ship. The captain is responsible for security on board. In Dudley and Stephens, the defendant Dudley was the captain. Therefore, he (in contrast to Stephens) would probably not have been able to invoke section 35 of the German Penal Code as an excuse. According to German scholars, this limitation is itself limited insofar as nobody is required to fulfil an obligation if that would certainly or most likely mean death to him, cf. Neumann (2010, section 35 marginal no. 44). It is a question of fact whether Dudley would have been heard with the objection that at the moment when he acted he could not have afforded to wait longer because that would have meant certain or most likely death to him.
Frank (1907, pp. 530–531).
One attempt to reconcile the content of guilt with its meaning can be seen in James Goldschmidt’s proposal in 1913 to find the common underlying concept concerning all elements of guilt in the violation of a duty to heed the norm, see Goldschmidt (1913, p. 129).
The Finale Handlungslehre is a school of thought founded by Hans Welzel at the beginning of the 1930s and inspired by Neo-Kantianism. The representatives of the Finale Handlungslehre take the view that the intended purpose (Latin finis, therefore “Finale” Handlungslehre) is an integral element of an act and that consequently dolus belongs to the same level as the external elements of the act, i. e. to the definitional level of a crime and not to the guilt level.
Welzel (1969, p. 2).
Welzel (1969, p. 69).
Welzel (1969, p. 70).
Frankfurt (1986, pp. 65, 68, 74).
I think that the counterargument of an infinite regress (because one is always able to ask whether the second or higher order desire was formed freely itself) can be dealt with. I think we need to trace back the regress to a “power preference”, cf. Keith Lehrer (1997, pp. 101–103), which itself is not dependent on any prior decision. However, I cannot see that this undermines Frankfurt’s achievement in pointing out that being able to reflect our desires and beliefs and to form higher order desires and judgments about them is essential for the imputation of consequences to individuals.
In Germany, Urs Kindhäuser (1989, p. 41), had the idea of applying Frankfurt’s distinction to criminal law; for a more recent contribution cf. also Jochen Bung (2009, 258–264). I was inspired by Kindhäuser to analyse the situation concerning the dolus definition against the backdrop of Frankfurt’s theory. However, I am not sure how far my analysis really matches his ideas, and I take full responsibility for the following discussion of Frankfurt.
“No one can be obligated to do what he is unable to do”. See Kindhäuser (1989, p. 62–63), concerning the meaning of “ultra posse nemo obligatur” in the context of imputation.
This applies not only for result-crimes, but also for conduct-crimes. Conduct-crimes are introduced with regard to unwelcome consequences not mentioned in the provision.
Concerning „technical ability“ cf. the term “Handlungsfähigkeit” by Kindhäuser (1989, p. 46–47).
Concerning „motivational ability“ cf. the term “Motivationsfähigkeit” by Kindhäuser (1989, p. 152).
With the meaning explained in “From the Psychological To a Normative Definition of Guilt” above.
I use the word “technical knowledge” in this paper in the sense that a person who has this kind of practical knowledge knows the necessary means to achieve the ends of his action. The state of mind of such a person can be expressed exactly by the practical syllogism the conclusion of which is called a “technical ought” by Georg Henrik von Wright (1983, pp. 153–156). “Technical knowledge” is a practical knowledge and thus also an ability to apply knowledge. “Technical knowledge” and “technical ability” are therefore used as synonyms in this paper. It is not possible to explore the significance of the practical syllogism in depth here. It has often been attempted to clarify the concept of dolus with the help of von Wright’s practical syllogisms, for the latest German example see Bung (2009, pp. 144–151, 198–206).
Under “From the Psychological To a Normative Definition of Guilt” and at note 43.
Jakobs (2002, pp. 584–591).
Puppe (2010, section 15 marginal no. 43).
There exists a similar discussion of „wilful blindness“ in contemporary Anglo-American writings, however as far as I can see mostly in connection with recklessness in England, cf. Antony Duff (1990, pp. 144–145, 166–167); Victor Tadros (2002, pp. 227–258). In the US this aspect seems to be discussed even in connection with knowledge, see below at note 69.
Jakobs (2002, p. 588).
Cf. Section 17, 2nd sentence of the German Penal Code.
See above at note 5.
In Germany, children are held responsible for the commission of crimes from the age of 14 years onwards according to section 19 of the German Penal Code.
Jakobs (1991, p. 317).
See “An Attempt to Justify Welzel’s Concept of Dolus” above.
Like inadvertent negligence, see above “Feuerbach’s Criminal Intent” at note 12.
Cf. also Duff (1996, pp. 156–169, 378–384).
See already above “Feuerbach’s Criminal Intent” at note 12 concerning the integration of inadvertent negligence into Feuerbach’s model.
See above “An Attempt to Justify Welzel’s Concept of Dolus”.
Cf. Oberlandesgericht Cologne, Neue Zeitschrift für Verkehrsrecht 1992, 80; Bundesgerichtshof, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2007, 267.
Booth v CPS [2006] All ER (D) 225.
R v Cunningham [1957] 2 QB 396: “The accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it.”
Cf. Roxin (2006, § 12 marginal no. 32).
With the exception of the scholars cited in “Dolus Eventualis: Actual or Potential Knowledge?” above.
See note 49 above.
US v Heredia, 486 F.3d 913, 917 (9th Cir. 2007).
Cf. concerning the observation of such development Roxin (2006, section 13 marginal no. 73).
Cf. the civil case Oberlandesgericht Hamm, Recht und Schaden 1991, 154.
Schönke/Schröder/Sternberg-Lieben (2010, section 15 marginal no. 75).
Cunningham (2010, pp. 445, 466).
My remarks apply to German dolus eventualis, but cf. also concerning the Italian dolo eventuale Corte di Cassazione, sezione I, 13 December1983, II, 96; Canestrari (1999, pp. 254–256). The French dol éventuel, however, cannot be equated with the German dolus eventualis, but rather with German advertent negligence. Thus, the overtaking manoeuvre just before a hill-top is stated as an example for dol éventuel in French literature, cf. Merle and Vitu (1997, pp. 758–759 no. 604); Vermelle (1994, p. 60), whereas in the absence of exceptional circumstances it is classified as advertent negligence according to the standard of German courts and the majority of German scholars. However, while German dolus eventualis is grouped with intention, dol éventuel is seen as a separate fault element between intention and negligence, la faute non intentionnelle in French literature, cf. Pradel (1999, marginal no. 113): ‘La faute commise est si grave que l’on est parfois demandée si elle pouvait être assimilée au dol, ce que suggère d’ailleurs l’expression ‘dol éventuel’. Cette assimilation, admise dans certains droit étrangers, est formellement récusée en droit français. (‘The fault committed is so grave that sometimes the question has been asked whether it should be regarded as equivalent with dolus. That is also suggested by the expression ‘dol éventuel’. Such equivalence, approved by some foreign legal systems, has been formally rejected by French law.’) Vermelle (1994, p. 60): ‘La jurisprudence n’assimile pas cette faute grossière à l’intention.’ (‘The law does not equate this gross fault with intention.’) Dol éventuel is defined in the Code Pénal art. 121-3 as ‘mise en danger délibérée de la personne d’autrui’ (‘deliberately putting another person in danger’).
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Acknowledgments
I am grateful for many helpful comments by the audiences at the Criminalization Conference in Stirling on 9 September 2011 (workshop chaired by Lindsay Farmer) and at Ulfrid Neumann’s seminar in Frankfurt on 7 July 2011.
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Appendix
Appendix
Dolus Eventualis Compared With Recklessness: A Clarification of Terminology
A short note is appropriate in which I explain why I prefer to see the notions of German dolus eventualis and Anglo-American recklessness as not only developed historically in a different way, but also as having a definitely different content.
Although theoretically no convincing reason may exist to draw a clear dividing line between dolus eventualis and recklessness, I can identify at least three reasons why the two notions should still be kept apart:
Indirect Influence of Voluntative Elements on Dolus Eventualis
German courts and scholars have not been able wholly to leave behind their historical roots. When the criteria for dolus eventualis are applied in hard cases, reminiscences of the original notion as developed by the representatives of the will theory can frequently be observed.
For example, if the perpetrator’s action simultaneously involves a risk to his own person or a close relative, this will practically in most cases exclude acceptance of the result in the way that dolus eventualis would require,Footnote 62 unless the perpetrator is suicidal or has any other motive to harm himself or his relatives. Therefore, a case like the English Booth v Crown Prosecution Service Footnote 63 which purports to apply the Cunningham testFootnote 64 would have been decided differently in Germany.
The High Court in Booth upheld a conviction on the charge of recklessly damaging property belonging to another pursuant to section 1 (1) of the Criminal Damage Act of 1971. The defendant had crossed the road without checking for traffic and collided with a car thereby causing substantial damage not only to himself, but also damaging the car. The court held that it suffices for the assumption of recklessness that the defendant ‘was aware of the risk and closed his mind to it’.
In Germany, such a situation for the courts and the majority of scholars would be a typical case of advertent negligence. Particularly, if someone represses his knowledge of the danger in the concrete situation in which he acts, this will not be considered as a state of mind sufficient to impute dolus eventualis to him.Footnote 65 If the perpetrator is aware of the risk and ‘closes his mind to it’, that would be regarded as equivalent to someone’s having theoretical knowledge of the danger, but not considering the danger as practically relevant when he acts.
The difference between the English concept of recklessness and dolus eventualis can also be observed in respect of the American notion of recklessness. According to § 2.02 of the Model Penal Code, the perpetrator must disregard a risk which ‘involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.’- Even disregarding a risk which involves a gross deviation from the standard of a law-abiding person does not ensure that the actor has actually accepted the possibility that the definitional result of the crime occurs. American scholars have pointed out themselves that the concrete shape of recklessness may be influenced by the fact that it was historically developed in tort law where it was regarded as a type of negligence.Footnote 66
No Normativation of Dolus Eventualis
The different historical roots of dolus eventualis and recklessness may also be responsible for the German reluctanceFootnote 67 to normativize dolus eventualis. If the German legislature demands a minimum of dolus eventualis for most serious crimes, it refers to a concept developed as an extension of direct intention. Therefore it is unthinkable to include what Germans would call advertent negligence in the notion of dolus eventualis.
Like the German legislature concerning dolus eventualis, the English legislature recognises recklessness as an alternative to intention for most of the more serious crimes. However, in contrast to the German situation, the different historical roots of recklessness encourage the inclusion of „wilful blindness“ in recklessness in England,Footnote 68 and in the US a wilfully blind defendant who takes deliberate actions to avoid confirming suspicions of criminality may even be considered as having acted knowingly.Footnote 69
Acceptance of the Result and Acceptance of the Concrete Danger that the Result May Occur
Further, Germans tend to distinguish between accepting the result and accepting the concrete danger that the result may occur. Thus, in a case in which the defendant drove his car at high speed towards a policeman who was standing at a road block, the German Federal Court instructed a lower court that the defendant could lack the necessary dolus eventualis for manslaughter—it is possible that he thought the policeman would be quick enough to jump aside –, even if he had had dolus eventualis concerning the concrete danger to the life of the policeman and thus could be convicted of endangering the life of a person with the necessary dolus.Footnote 70 The expectation of being able to avoid the result risked would not hinder acceptance of a concrete risk with regard to that same result.Footnote 71
I think that the logic behind this German practice may be called into question. If I accept that by acting in a certain way I create a concrete danger to a person’s life, and notwithstanding that knowledge, I proceed to perform the action, this seems to entail that I have accepted the person’s death. However, this questionable logic indicates a reluctance of German courts to find dolus eventualis in certain types of situations. Thus, German courts and scholars over the years have developed an extensive list of indications which regularly exclude dolus eventualis.Footnote 72 A car driver who performs an overtaking manoeuvre just before a hill-top over which he cannot seeFootnote 73 will regularly not have committed (attempted) manslaughter, a crime for which German law requires at least dolus eventualis. The same is true for a surgeon who performs a very dangerous operation.Footnote 74 Thus, if the surgeon unreasonably takes a risk, he will only be criminally liable for negligently killing his patient.
By contrast, in England and the US recklessness seems to include both accepting the result and accepting the concrete danger that the result may occur. Thus, § 2.02 of the Model Penal Code defines recklessness in the following way: ‘A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.’ Such definition does not seem to see the difference between taking the risk into account and taking the result risked into account as decisive.
In England, Sally Cunningham has pointed out that highly trained surgeons realise that, when they undertake to operate on a patient under a general anaesthetic, a risk of death exists and that in applying the Cunningham test, the part which requires recognition of the risk would always be met.Footnote 75 If the risk taken by the surgeon was unreasonable, he therefore would be guilty of having killed the patient recklessly, whereas German courts, as I have pointed out, would probably only consider conviction for a crime of negligent homicide.Footnote 76
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Toepel, F. The Fault Element in the History of German Criminal Theory: With Some General Conclusions for the Rules of Imputation in a Legal System. Criminal Law, Philosophy 6, 167–186 (2012). https://doi.org/10.1007/s11572-012-9150-4
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DOI: https://doi.org/10.1007/s11572-012-9150-4