Abstract
The concept of a criminal offence calls up predictability, it evokes the possibility of finding a definition of what is prohibited and what failures to aid engender criminal liability. In this sense, defining a criminal offence means defining a set of ‘formal’ and ‘external’ conditions. However, as we have indicated in previous chapters, certain theorists of the criminal law have situated the concept of criminal offence in an ethical context. For instance, a substantial part of the discussion of excuses rests on concepts concerning the moral propriety of convicting an individual in certain circumstances. What, then, are the implications of ‘reading’ a formally defined criminal offence in the context of a moral standard?
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Notes
Glanville Williams, Textbook of Criminal Law, (Stevens & Sons, 1978) p. 553.
(1899) Receuil Sirey II 1, for some effects of mixing arguments of justification and excuse see P. Bouzat and J. Pinatel, Traite de Droit Penal et de Criminologie, Tome 1 (Librairie Dalloz, 1970), p. 369.
H. L. A. Hart and A. M. Honoré, Causation in the Law (OUP, 1959) p. 43.
C. Fried, Right and Wrong (Harvard UP, 1978) p. 36.
For discussion of this tradition see G. Grisez, Abortion (Corpus Books, 1970), J. Finnis, ‘The Rights and Wrongs of Abortion Philosophy and Public Affairs’, vol. 2 (1973)
J. Noonan, ‘An Almost Absolute Value in History’ in Noonan (ed.) The Morality of Abortion (Harvard UP, 1970).
There would appear to be problems associated with where the line is drawn between direct and indirect. For example, in the case of a misplaced pregnancy in the Fallopian tubes, hands cannot be placed on the foetus and it cannot be removed ‘directly’, however, ‘… the removal is indirect when that which is removed … is not the foetus directly but the diseased organ in which the foetus is contained … according to this view the death of the foetus is only an indirect consequence of the operation’. T. Bouscaren, The Ethics of Ectopic Abortions (Bruce Publishing Co., 1944) p. 23.
The example is taken from Phillippa Foot, ‘Abortion and the Doctrine of Double Effect in J. Rachels (ed.) Moral Problems, 2nd edn (Harper & Row, 1975) pp. 59–70. The article seeks to establish when it is permissible to kill, under the standard of least harm and where killing is absolutely precluded independently of harmful consequences that accrue from not killing.
For a discussion of the autonomy position see L. W. Sumner, Abortion and Moral Theory (Princeton U.P., 1981) pp. 40–9.
These categories are taken from Aquinas’ analysis of the legitimacy of killing in self-defence. In a ‘true’ act of self defence there is, he argues, no criminal homicide, no unlawful killing, precisely because the resulting death is ‘outside the scope of intention’ and this independently of the fact that the death is directly done. However, we have also seen that the Catholic tradition basing itself on Aquinas argues that direct killing indicates an unlawful intention. Like Thomson the Catholic writer Grisez (op. cit., p. 343) suggests that direct killing, or abortion in the case of rape ought to be rendered permissible by the Church again taking the position that moral intention is not reducible to what is directly done; ‘It is not clear that her precise concern is to kill the child. She simply does not wish to bear it. If the artificial uterus were available. She might be happy to have the baby removed and placed in such a device. … May the death of the child that is in fact brought about by aborting it actually be unintended in this case? I believe that the answer must be YES.’ For further discussion of the significance and meaning of Aquinas’ position see P. Knauer, ‘The Hermeneutic Function of the Principle of Double Effect’, Natural Law Forum, vol. 12 (1967) pp. 132–62
J. Mangan, ‘An Historical Analysis of the Principle of Double Effect, Theological Studies, vol. 10 (1949) pp. 40–61.
On liability on an excessive risk-taking basis see W. La Fave and A. Scott, Handbook on Criminal Law (West Publishing Co., 1972) pp. 541–5.
S. Kadish, ‘The Decline of Innocence’, Cambridge Law Journal, vol. 26 (1968) p. 286.
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© 1983 Antony Cutler and David Nye
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Cutler, A., Nye, D. (1983). The Relevance of the Criminal Offence. In: Justice and Predictability. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-05987-4_4
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