Journal of Criminal Law and CriminologyVolume 54Issue 3 September Article 3

Fall 1963

Criminal Law SystematizedRichard M. Honig

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

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 FreiburgUniversity.

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 attempt made by Hall in this work tosystematize criminal law represents a trend new to the United States but of long standing in Europeancountries. 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 appraisesthe principal elements of Hall's system, weighing them critically with the corresponding Germantheories.-E rToR.

For many decades European criminal law hasbeen dominated by theoreticians who, in coopera-tion with the administration of justice, have en-deavored to build up systems of the criminal lawof their countries. Most recently a similar trendis observable in American criminal law. Latestevidence thereof is Professor Jerome Hall's bookGeneral Principles of Criminal Law.'

I. PROFESSOR HAIL'S ENDEAVOR

As the title indicates, Professor Hall's book ismeant to present a theory and system of criminallaw based on generally valid and generally ap-plicable principles. Hall has made this perfectlyclear by informing the reader that "the most im-portant functions of a theory of criminal law areto elucidate certain basic ideas and organize thecriminal laws... ."2

A. His Continental Referents

This starting point must be borne in mind toavoid misinterpreting Hall's statement "that themajor shortcoming of the nineteenth century pro-fessional literature on criminal law, both Anglo-American and Continental, was the lack of sys-tem."' 3 To be sure, in the numerous Germansystems on criminal law written in the nineteenth

I Indianapolis: The Bobbs-Merrill Co.; 1960. Pp.xii, 642. $9.00.

Hereinafter, where page numbers, only, appear inthe footnotes, the reference is to this work.

2 P. 2.3 Pp. 11-12.

century, by Feuerbach, 4 Abegg,5 K6stlin, s Hd.lsch-ner,7 Berner,s and Hugo Meyer,9 to mention onlythe most influential criminalists, the leading "setof ideas" is not predominant or dearly enunciated.But the late nineteenth century systems of crim-inal law, such as those of von Liszt 0 and Binding,"are unmistakably composed of basic ideas. Thesame holds true of the systems constructed in thetwentieth century by Beling," Max Ernst Mayer,13Mezger, 4 von I-Iippel,"5 Sauer, 6 and Wezel." That

4 ANSELM VON FEUERBACH, LEHRBUCH DES GE1MEI-NEN IN DEUTSCHLAND GULTIGEN PEINLICHEN RECHTS(14 editions, from the beginning of the 19th centuryuntil 1847).

-1I. FR. H. ABEGG, SYSTEM DER CzNmAL-RxHTcs-WISSENSCHAT (1826).

6 C. REINHoLD K6STLIN, SYSTEM DES DEUTSCHENS RaAREcrTs (1855).

7 HUGO HXLSCHNER, SYSTEM DES PREUSSISCHEN

STRAFREcHTs, Teil I (1858); DAS GEMEINE DEUTSCHESTRAERECHT, Bd. I (1881).

8 ALBERT FRIEDRICH BERNER, LEHRBUcH DES DEUT-

SCHEN STRACxcTs (18th ed. 1898).9 HUGO MEYER, LEHRBUCH DES DEUTSCHEN STRAF-

REcHTs (5th ed. 1895).'0

FRANz VON LISzT, LEHRBUCH DES DEUTSCHENSTAFREcHrs (25 editions from 1882 until 1927).

1 KARL BINDNG, DIE NOR EN UND I=Ra UEBER-TRETUNG (1st ed. 1872, 3d ed. 1918).

" ERNsT BELING, DIE LEHmE VOM VERBRECHEN(1906).

"3MAX ERNST MAYER, DER ALLGEJ EINE TEILDES DEUTSCHEN STRAZcHTs (1915).

14 EDMUND MEZGER, STRAFRECaT, EIN LEHRBucH

(3d ed. 1949)."5ROBERT VON HiPPEL, DEUTScHES STRArREeHT

(Bd. I. 1925, Bd. 1H 1930).16 WHE=L SAUER, AL.GEMEINE STRAREIcHTs-

r.EmH (3d ed. 1955).1 HANS WELZEL, DAS NEUE Bun DES STRAFIEcnTs-

SYSTEMS (4th ed. 1961).

RICHARD M. HONIG

Hall does not mention them may be because thesecriminalists built their systems on basic ideas andprinciples as integrated in the German criminallaw, whereas Hall strives to construct his system"of a set of ideas by reference to which every penallaw can be... explained."' 8

Hall encourages the reader to compare the basicideas of his system with the categories presentedin the German theory of criminal law, when inthe preface to the first edition, reprinted in thesecond edition, he points out that his principles"include many of the ultimate ideas of Westerncivilization."10

B. His Interdisciplinary Referents

Hall derives his principles from the union ofrules and doctrines. The significance of the princi-ples consists in their being "the ultimate normsof the penal law."20 Each of the three notions-principles, doctrines, and rules-"serves importantdistinctive functions."2' The rules "define particu-lar crimes and fix the respective punishments andtreatment."2 Doctrines are not to be understoodas theories in the usual meaning of this term, 8 butare mostly concerned with "unusual or abnormalstates of mind or situations, '24 to wit insanity,infancy, intoxication, mistake, coercion, necessity,attempt, conspiracy, solicitation, and complicity.25

Metaphorically speaking, the doctrines are to beplaced intermediately between the "rules" as the"narrowest and most numerous" propositionsand the "principles"; being of "the widest gener-alizations" the latter are at the other extreme ofthe line. Their subjects are seven ultimate no-tions: mens rea, act (effort), the concurrence (fu-sion) of -mens rea and act, harm, causation, pun-ishment, and legality.2" To clarify the differencebetween principles and doctrines, I may add thatprinciples relate to elements of the rules that arepart of the definition of the crime in question,whereas doctrines are concerned with circum-stances that are to be taken into consideration inthe application of the rules to concrete cases.

However, not all principles are equally importantin relation to the definition of crime, and not all

18P. 1.19 P. vi.20 p. 19.21P. 17.22p. 17.21 P. 17 n. 32.24 p. 19.25P. 17.26 P. 18.

doctrines are based on juridical logic only. Amongthe principles, it is the principles of punishmentand legality which, according to Hall, do not refer"to essential elements of 'crime'."' The supportingpoints of the doctrine of insanity must be soughtin psychiatry and in philosophical perspectives.28

The perpetrator's responsibility may be more orless influenced by voluntary and involuntary in-toxication, intoxication psychoses, chronic alco-holism, and physical injuries. 29 To what extentthe judge should accept the opinions of medicalexperts is left to his own determination. As tokind, degree, and extent of punishment, criminal-political considerations are of great importance.Where free determination and considerations ofthis kind are involved, the criminalist's opinionrests on his personal convictions. Therefore, I shallonly briefly refer to Professor Hall's opinions asfar as the above problems are concerned.

Hall's ideas on punishment (chapter 9), mentaldisease (chapter 13), intoxication (chapter 14),and criminology and penal theory (chapter 16)are instructive and far-seeing. In chapter 9, forinstance, he stresses that the administration ofpenal law has to take into consideration retributiveand utilitarian ethics. Hall thus supports the in-clusive theory," noting with approval that thistheory "has been gaining ground in recent years.""1He observes that the courts "are attending to thegravity of the harm, the personality of the offender,the public interest, the available peno-correctionalfacilities, and so on.""2 However, as Hall stresses,to strengthen this sound trend the inter-depend-ence of penal theory and criminology has to berecognized"l "the various disciplines concernedwith criminal conduct, law and punishment should

"'34be viewed as a single inquiry ....Likewise, psychiatry, law, and legal science

should find a common basis.2 5 The leading exampleof this need is to be found in the problem of re-sponsibility. According to Hall it is the M'NaghtenRule which provides guidance to the jury, al-though its reform seems to him absolutely neces-sary. The wording of the Rule, as used today, doesnot take into account "the integration of all the

27 p. 18.28 Pp. 454-55.-2 Pp. 533, 554.30 Pp. 302, 304.31 P. 308."P. 306." P. 601."P. 621.3" P. 454.

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CRIMINAL LAW SYSTEMATIZED

principal functions of personality." 36 The rationalfunction, to which alone the Rule refers, must bejoined by the volitional function. 7 Thus, the juryshould be asked "(1) whether, because of mentaldisease, the defendant lacked the capacity tounderstand the nature and consequences of hisconduct; and (2) whether, because of such disease,the defendant lacked the capacity to realize thatit was morally wrong to commit the harm in ques-tion."3 If instead of the restrictive word "know"the wider terms "understand" and "realize" areused, the Rule takes "full account of the volitionalfunction of personality."39

In the chapter on "Intoxication," Hall severelycensures the courts' hostility toward the drunkenoffender, as seen particularly in their readiness toimply voluntary drunkenness. 40 Hall finds furtherfault with the courts for their frequent failure totake seriously the defense of fraud and coercionin becoming drunk,4M and for their tendency notto recognize temporary insanity produced bydrunkenness as destroying responsibility.4 Es-pecially noteworthy is Hall's suggestion that differ-ent legal consequences should apply as betweendrunken offenders without prior experience withthe influence of alcohol upon them, and thosewhose previous experience should have forewarnedthem. 43

II. THE PRwnciPxES

Turning now to Hall's principles as based solelyon juridical logic, I must regretfully confess that Idiffer from Hall's interpretation of all the mainproblems essential to any system of criminal law.

A. Legality and the Essential Elements of Crime

As mentioned above, the principles of punish-ment and legality are, according to Hall, unrelatedto the essential elements of the crime.4' Thatpunishment is not related to such elements is evi-dent. As a reaction against a violation of pro-hibitory or imperious legal norms, punishmentshould correspond to the gravity of the violation;4"but there is, indeed, no direct and specific relation

36 p. 521.

7P. 522.23 P. 521.s9 Pp. 521-22.40 p. 533.41 P. 540.42 P. 542.- Pp. 556-57.4P. 18.4P. 315.

of punishment to the essential elements of thecrime. The situation, however, is different withregard to the principle of legality. Hall notesaptly that one meaning of this principle is "thatno conduct may be held criminal unless it is pre-cisely described in a penal law."'4' In other words,this principle demands that in order to be punish-able, conduct must correspond to the elements ofthe definition of the crime in question. Hall ex-presses this idea by saying: "[Wihen a legal writerspeaks only of harm, conduct, punishment andso on,... what he probably means to say is legallyproscribed conduct, legally proscribed harm,legally prescribed punishment, and so on."4 7 Thus,it is precisely the conformity of the elements ofthe conduct to the elements of the crime as definedby law that underlies the significance of the prin-ciple of legality. Consequently, it is not conceivableto me why, despite the demand of such conformity,which in the German doctrine is called "Tatbe-standsmdssigkeit," the principle of legality has norelation to the essential elements of crime.

B. Conc-urrence

Hall puts the relation between imes rea andconduct under the principle of concurrence, i.e.,the fusion or integration of viens rea and act."3That mens rea has to coalesce with conduct has,as Hall notices, contributed to the developmentof criminal law. For instance, larceny by baileeand embezzlement became recognized as specialcrimes against property because the perpetratormade up his mind to appropriate property ofanother person only when he was already in pos-session of it.

But there are border cases, particularly Jacksonv. Commonwealth, 100 Ky. 239, 38 S.W. 422 (1896),on which Hall's discussion leaves me dissatisfied.In the Jackson case, the defendant, a medicalstudent, had given his pregnant girl friend a largedose of cocain with the intent to kill her, and then,under the mistaken belief that she was dead, hehad severed her head from her body. This decapi-tation, only, caused her death. Hall views thedefendant's conviction of murder as a miscarriageof justice; he regards the decision as a violationof the principle of concurrence. "[T]he mens rea,"he states, "did not concur with the actual killing.""[There was no intention to kill or injure a human

46 P. 2847P. 25.48P. 18.

RICHARD M. HONIG

being at the time of the decapitation.149 Thiscertainly is true. But is "concurrence" only meas-urable by the dock? Should not the "fusion" or"integration" of inens rea and act be regardedunder the viewpoint that the act was done withthe intention to produce the harm in question?German jurisprudence attains satisfactory resultsby making use of the concept "doluts generalis,"taking primarily into consideration the essentialand immoral quality of the conduct. This, indeed,is, if I understand Hall correctly, the requirementimplied in the principle of concurrence.50 Then,however, not the question of time but the substanceof the perpetrator's guilt, his intention concomitantwith his conduct or his indifference to the riskinvolved, is decisive.

It seems to me that Hall interprets the principleof concurrence in this way in cases of culpableforbearance. United States v. Van Schaick, 134 Fed.592 (S.D.N.Y. 1904), involved a shipwreck inwhich many passengers were drowned due to thedefectiveness of the lifebelts. The captain andthe owners of the boat were found guilty of man-slaughter. "The nature of the offense," said thecourt, "precluded a single act." The duty of thecaptain and the owners to take care for the safetyof the passengers "was continuing." Thus thecourt found the forbearance of the culprits to be acontinuing crime. Hall, however, is of the opinionthat "there is no need to resort to a fiction of 'con-tinuing' forbearance in order to satisfy the prin-ciple of concurrence.... If an offender inten-tionally or recklessly creates a dangerous situationwhich later causes a proscribed harm, liabilityattaches to his conduct, i.e., to the 'concurrence'of the nens rea and the manifested effort ('act'),not to that of the mens rea and the harm."' 1 Idon't see why this should hold true only where adangerous situation is created. When the perpetra-tor aims at injuring or killing another person andobtains his purpose by a turn of the causality hehad not foreseen, as in the Jackson case, he like-wise should be fully responsible for the harm.Besides, I do not think the court took "resort to afiction of 'continuing' forbearance in order to sat-isfy the principle of concurrence." Rather, thecase in question involved a continuing crime. Sincethose responsible for the welfare of the passengersacted recklessly, they knew, according to the mean-ing of this term, that they took a chance. The

4 P. 189.5OP. 186.lP. 188.

court was entitled even to impute this knowledgeif, as Hall points out, "a reasonable man in thegiven situation would have been aware of it." 52

A reasonable man, however, would have beenaware of it not merely before or at the embarka-tion, but also during the voyage. The inens reaof the people responsible extended over the dura-tion of their duty to care for their passengers. Thisdoes in fact correspond to the opinion of the Eng-lish and American as well as the German crim-inalists. Hall's stigmatization of the court's viewas "fiction" seems to me consistent with his re-fusal to recognize the dogma that an omissionis punishable only in case there was a legal dutyto take action. We shall return to this problemunder heading D.

C. Harm

The preceding argument leads to the clarifica-tion of the term "harm," one of the seven "ultimatenotions. ' ' 3 If we understand harm to be "a centralnotion of penal theory,"-" it should follow that itconsists of endangering or violating one of thoseultimate values the protection of which is the aimof criminal law. This obviously is its meaning whenHall defines it as "loss of a value," and when it is"stated in terms of intangibles such as 'harm' toinstitutions, public safety, the autonomy ofwomen, and so on." 55 However, Hall does not re-strict the notion "harm" to intangibles, but ap-plies it to physical injuries as well. When he speaksof "harm" as "the end sought" or "the focal pointbetween criminal conduct.., and the punitivesanction""6 he seems to have the physical objectof the perpetrator's action in view. The importanceof harm in this sense is underscored by the state-ment that "harm... is the fulcrum between

criminal conduct and the punitive sanction" andthat the elucidation of this relation "is a principaltask of penal theory."

This ambiguity, which has existed in Americancriminal law for a long time, is disadvantageousto the systematization of the criminal law. It re-sults from a general neglect to recognize a differ-ence between crimes resulting in factual injuriesto other persons and crimes consisting merely ofthe perpetrator's act. In German criminal law this

12 P. 121.53P. 18.

'P. 213.6 P. 2175r P. 213.

7P. 213.

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CRIMINAL LAW SYSTEMATIZED

difference leads to the distinction betweenErfolgsdelikte, crimes causing factual effects, andscldichte Tdtigkeitsdelikte, crimes committed andconsummated without such effects. If Hall hadrecognized that these two groups of crimes are ofequal significance for the goal of any criminal law,he would have seen that American criminalists donot "list exceptions" and add "confusion" whenthey state "that in some crimes there are harms,but in other crimes there is only conduct."-"

D. Act (Effort)

Punishment is justified only when harm, under-stood either as "end sought" or as "loss of value,"is caused by criminal conduct. Professor Hallstarts his chapter on "Criminal Conduct" by re-porting briefly on Austin's definition of conduct:"Act is a voluntary movement. It consists ofmuscular motions which immediately follow thewish for that movement.""9 Hall contrasts thisstrict concept with the very wide definition ofSalmond: "'[A]ct' includes (1) the offender'sbodily movements or omissions and (2) the ac-companying circumstances and (3) the conse-quences."6 If we ask which of these contrastingconcepts is to be preferred, we must take into con-sideration that intention and volition are, accord-ing to Austin, "inseparably connected," whereas,according to Salmond, "intention is not a necessarycondition of legal liability.... 61 To agree withSalmond means, as Hall stresses, "to includenegligent, i.e., inadvertent, behavior" in the notion"act. 16 2 This, however, is, as I will show later,contrary to Hall's concept of criminal conduct.Furthermore, since the term "act" is ambiguous,as it covers not only overt bodily movements, butalso doing nothing, Hall prefers the term "effort,"which refers to "both voluntary movement and[voluntary] forbearance."" "[I]n criminal for-bearance the offender 'uses' active external forcesby not interfering with certain effects of theiroperation."' 4 In relation to the realization of theeffort, Hall distinguishes between the "internaleffort of intention" and the "manifested effortwhich actualizes the mens rea in the externalworld."0 This "manifested effort, which includes

6s P. 220.P. 171.

o0p. 172.61 p. 173.12P. 174.

P. 177.c4 P. 254.61 P. 179

voluntary overt movement and... voluntaryforbearance, may be termed an 'act'." 6

Since the manifested (or further) effort is thematerialization of mets rea, which comprehendsboth "relevant cognition, i.e. knowledge of thematerial facts, and an internal effort, 'movementof the will,' "17 and since every effort is "positiveand operative,"' any omission, "in a sense otherthan voluntary forbearance," is, according toHall, "fictitious."69 Consequently, Hall concludes,negligence, in the sense of inadvertence, is notincluded in the notion "conduct." There Temains,however, I submit, the question whether this issound penal theory. To be sure, in cases of negli-gence the perpetrator does not aim at somethingunlawful. His intention is not directed to the in-jury caused by his negligence. However, his failureto consider the possibility that he might injuresomeone indicates that he is wanting in that degreeof attention which the law expects and demandsof everyone. His conduct does not correspond tothat carefulness and consideration which everyoneowes to his fellow-citizens20 This fact justifiespunishment in case negligence causes harm.

As to the punishment of omissions, Hall refersto English decisions of the early nineteenth cen-tury. Under these decisions, an omission waspunished if, according to the circumstances, "alegal duty to act was definitely recognized."' Forthe second half of the nineteenth century, Hallmentions Macaulay and Stephen who pointed outthe rules regarding punishable omissions. Bothstressed that the omission of "benevolent moral-ity" is not sufficient to justify punishment. Theyfelt there must be a relationship between the omis-sion and the positive law in order to stigmatizethe omission as a violation of a legal duty to act2

This train of thought corresponds to the defini-tion of punishable omissions to be found in theComments of the German Draft of a Criminal Codeof 1960. The Comments dearly state that themoral duty to prevent a danger or injury does notcreate a legal duty to act. Rather, such duty mustbe established by the law itself before the inactiveperson may be held responsible for not preventingthe consequences of his inactivityY3 The thought66 p. 184.67P. 183.63 P. 180.9P. 180.70 Cf. WELzEL, op. cit. supra note 17, at 35 et seq.71 P. 192.7P. 193.'Cf. BEGRTNDu0G zou Erwur Enms STRAF-

GESETZBUCHES 116-17 (1960).

RICHARD M. HONIG

expressed in the Comments represents 100 yearsof learned deliberations on the problem of crimescausing harms and committed by omissions(Unechte Unterlassungsdelikte). In codified form itis contained in §13 of the authorized GermanDraft mentioned above.

Hall, however, is of the opinion that "it requiresonly brief scrutiny... to disclose the superficialityof that theory." "The assertion that an omissionis criminal if there is a legal duty to act ... is amere tautology if 'legal duty' means a duty im-posed by criminal law."74 This is certainly true,since if omissions are prohibited by criminal lawit is implied that the criminal law itself demandscertain actions. But the English decisions citedby Hall 75 dealt with harms occasioned by violationof duties to act imposed not by the criminal law,but by private law-such as the duty to providesufficient food to children, to an apprentice, or toa servant. Harms of this kind would not have oc-curred if the persons who had a legal duty to acthad fulfilled their duties. This is the reason why aperson who, by remaining inactive, violates suchduty is responsible for the harm caused by hisinactivity.

In response to arguments like this one, Hallmaintains that the above theory proves to befallacious, no matter whether "it is intended tomean that whenever a civil law requires the doingof an overt act, failure to do it is criminal," or "tomean that an omission is not criminal unless a legalduty is also imposed by civil law. ' 76 He notes that"failure to file a tax return, to keep a road in re-pair, and to perform official duties are commoninstances of the lack of any relevant private legalduty."7

Nobody should question this, since these ex-amples, like others added to them, concern plainomissions (echte Unterlassungsdelikte), appertainingto the realm of public law. Thus, Hall may cor-rectly assert that these cases are "unrelated toprivate law." But as plain omissions these casesdo not cause tangible harms proscribed by criminallaw. They do not prove anything against thedogma that inactivity is punishable when a personby private or public law was obliged to prevent theharm.

I agree without reservation with Hall's state-ment that "the relationship of certain rules of

74 P. 193.75 P. 192.76 p. 193.7 P. 194.

private law to the criminal law is sometimes oneof reference by the latter to the former, in thesense that it is forbidden to omit doing certainacts which are defined in the private law." 8 I can-not see, however, why Hall states: "This does notimply that the penal law is enforcing private law,but only that the latter proscriptions are alsopenal laws." 9 Hall substitutes here proscriptionsof the private law for its precepts. Only the latterare in question. The omission of precepts promptscriminal prosecution if a person by not acting ac-cording to them causes tangible harm that ispunishable.

In sum, I don't think that Hall has succeededin shaking the doctrine that punishment of anomission that caused tangible harm is conditionedby the violation of a legal duty to act. For thisreason, I consider Hall's statement untenable"that, so far as the principle of legality is con-cerned, there is nothing distinctive about criminalomissions." 80

Having come to this conclusion, Hall asks: "Cancriminal omissions be distinguished from overtcriminal conduct by reference to some other sig-nificant criterion, e.g., as regards causation?" 8' If afather stands by while his child drowns, he isliable, "whereas the stranger is not liable althoughthe physical facts and the chain of physical causa-tion are identical in both cases. This indicatesthat physical causation, alone, does not determineliability. There must also be something else; andin criminal omissions that element is illegal in-action, one might say, wrongly allowing the forcesof physical causation to operate when one, boundby law, could have altered certain of their con-sequences, i.e. precisely the human factor."8

It seems to me that the problem of causationfinally opened the door for the admission of thelegal duty to act. For, what else could be impliedby "bound by law" to alter the consequences?Or do the words: "precisely the human factor"contain a reservation or restriction?

In the section "Policy of Criminal Omissions"Hall speaks of the "particular duty" of parentsto their children, of the "special obligation" of arailroad employee, of a "particular obligation" ofone who agrees to look after an aged person. It isnot the moral obligation, says Hall, which creates

78 p. 194.

7P. 194.80 P. 194.R1 P. 195.2 P. 196.

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CRIMINAL LAW SYSTEMATIZED

such duty or obligation, since from the viewpointof morality the bystander is no less obliged to savethe child than the father. "The essential difference,it is suggested, inheres not in moral obligation, butin mores, in the public attitudes regarding therespective parties .... 3

In opposition to this concept, I am of the opinionthat it is not the mores, i.e., the public opinion, butthe law in its entirety which creates particularduties or special obligations on the basis either ofprivate or public relationship. If harm, forbiddenby criminal law, is the consequence of a failure toperform a duty or obligation, then the failure ispunishable as a crime because the law-not themores-demands action.

E. Causation

In cases of omissions, it is not physical causationas such, as Hall points out, but inaction allowingthe forces of physical causation to operate whichdetermines liability. Thus, in law the term cau-sality "has a teleological significance that dis-tinguishes it from mechanical causation."' 4 Thisnecessarily leads to the question of the nature oressence of the "cause-in-law" or "legal cause."After displaying various meanings of the term"cause," 85 Hall analyzes in his chapter on "Causa-tion" the three aspects under which a legal causeis to be comprehended: (1) Conduct must be thecoanditio sine qua wi the harm in issue would nothave occurred; (2) the condition must have "effec-tively, i.e. substantially" contributed to the harm;(3) finally, to be a legal cause, the necessary andsubstantial condition must be the expression of"a relevant imns rea, i.e., necessary, efficient end-seeking."86 "In sum," says Hall, "a cause-in-lawmeans a cause which is not only a necessary, sub-stantial factor, but also one that includes certainconduct which expresses a required mzens rea."''

At the beginning of his book Hall points at thedependence of the notion "legal cause" on theconception of mens rea: For the definition of mensrea to include inadvertence or negligent behavior"not only clouds the meaning of ines rea andpenal harm, it also greatly obscures the causalproblem in penal law."' ' 3 Even more distinct is theconnection between causation and guilt asserted

P. 210.N P. 196.85 P. 248.8G Pp. 282-83.7 P. 284.83 P. 3.

in the introduction to the chapter on "Causation":".... inens rea and the defendant's external move-ments are required... the conduct, thus formed,is the cause of penal harm."8 9

These statements raise the question: Is the char-acterization of the conduct as "manifestation ofthe inens rea" necessary to explain the productionof criminal harm or only its punishability?

Hall seems to be well aware that to considerinens rea as an element of the legal cause contra-dicts the generally demanded separation of causa-tion from guilt: "The temptation to exclude mnensrea from problems of causation arises from over-concentration on mechanical causation, resultingfrom a failure to appreciate the distinctive meaningof the principle of causation in penal law."9 Asthe fundamental of penal law the principle ofinens rea is, according to Hall, influential "in deter-mining the meaning of 'cause' in the teleologicalsense."191

The stress Hall lays upon the term "cause inthe teleological sense" and its relation to inens reainduces me to find behind Hall's conception afundamental thought I tried to develop some timeago.Y2 I believe that in order to comprehend thelegal relationship between conduct and harm it isnot enough to recognize human conduct as aco-nditio sine qua ion relative to the harm in issue.This fact is recognized by the so-called selectivetheories, the best known of which is the AdequanceTheory. According to it, conduct is a cause-in-lawif it usually creates the harm in issue. However,Sauer has pointed out93 that by judging the con-duct according to its fitness to create the harm inissue we are no longer occupied with causality assuch, but with a totally different, teleological andnormative problem. For, while the subject ofcausality is the ontological relationship of theconduct to harm, any selection among the con-ditions that come into question as causes of theharm is based on a judgment as to their generalfitness to produce such harm. By entering thisaxiological question we leave behind the realm ofontological contemplations.

Needless to say that nothing else but humanconduct is the condition whose general fitness to

wP. 247.90 P. 282.91 P. 295.' Honig, Kausalildt und objektive Zurechnung, in

FESTGABE fr REiNHARD VON FRANiK, Bd. I, p. 174el seq. (1930).93 WIHELM SAUER, GRUNDLAGEN DES STRAFRECHTS

443 (1921).

RICHARID M. HONIG[

produce harm is in question, and that conduct mustbe a manifestation of the human will in order tocreate legal consequences. The question whetherthe conduct was generally qualified to create theharm in issue leads to the alternative whether acertain conduct in relation to its result, to wit theharm in issue, can or cannot, from an objectivepoint of view, be considered as "end-directed,"i.e., as "zweckhaft gesetzt." In sum, only if an in-dependent axiological judgment follows the onto-logical sine-qua-nwn-judgment are we able to judgewhether the defendant's conduct was the cause-in-law of the harm in question and, if the answeris in the affirmative, to proceed to the questionof his inens rea.

With regard to my refusal to connect the ques-tion of causality with the defendant's mens rea, Ifeel considerably supported by Professor G. 0.W. Mueller's criticism of Hall's theory as discussedin Mueller's "An Appraisal of Jerome Hall's Stud-ies in Jurisprudence and Criminal Theory. ' 94 Inthese Studies, published in 1958, Hall introducedthe defendant's nwies rea as a third element of thecause-in-law. Mueller objected by pointing out that"meCns rea... is too far removed from causationto be part thereof by construction." Rather, it isthe "foreseeability" which "is properly subsumableunder the primary principle of conduct." "There-fore, prediction or foreseeability becomes properlythe third limitation on the causation inquiry.But causation, even in this sense... ,does notsuffice for the imposition of guilt or blame."

Professor Mueller's and my conceptions of thecause-in-law differ in the final analysis only in sofar as Mueller stresses the foreseeability of theconsequences, whereas I suggest that the objectivesuitability of the conduct to produce the harm inissue is the ultimate criterion of the relevancy ofthe conduct, if other conditions beside the conductas such contributed to produce the harm. I shouldpresume that Hall would not have taken pains toprove mens rea to be the third element of the cause-in-law if he had not taken as self-explanatory buthad scrutinized the conditions under which thepredicate "substantial cause" 95 can be attributedto one of several causes or the predicate "efficiencyor adequacy" to a necessary cause. 6 Predicatesas these are objective standards based on commonopinion and experience, just as foreseeability of theconsequences or the objective suitability of the

9434 IND. L.J. 206 (1959)."P. 283.96 P. 292.

conduct. By these standards the legal significanceof the conduct as such is determined. Whether thedefendant could be expected to .act in conformitywith them is a different question. This is the ques-tion of guilt.

F. Mei-s Rea, Negligence and Recklessness

Criminal guilt is established when man's con-duct is the actualization of his mens rea, i.e., ofthat state of mind which includes "knowing orbelieving, with reference to the material facts and,also, the internal effort of intention." The im-mediate and inevitable logical consequence of thisdefinition offered by Hal' is the exclusion ofnegligence from guilt. For "negligence impliesinadvertence, i.e., that the defendant was com-pletely unaware of the dangerousness of his be-havior."" "Between the extremes of intentionalityand negligence lies recklessness." 9 Thus, inten-tionality, recklessness, and negligence are thethree basic mental positions relative to the de-fendant's criminal liability for his conduct.

In the case of intentionality, the perpetratorintentionally commits a morally wrong act;"' hehas chosen to cause a proscribed harm by hisconduct.1 0' The reckless person, on the other hand,does not intend to cause harm. However, he doesnot mind increasing "the existing chances that aproscribed harm will occur"1i2 In this sense,"recklessness connotates awareness.' ' i ProfessorHall realizes perfectly well that the limitation ofthe notion "recklessness" is not in line with thedefinition of recklessness as given in §500 A.L.I.Restatement, Torts. He is of the opinion that it "isplainly opposed to the meaning of recklessness"that someone who "was not aware of the fact thathe was unduly increasing the risk of harm,... wasnonetheless reckless if the 'reasonable man' wouldhave known the risk." By the definition of theabove §500, persons are held reckless, even thoughthey were only negligent.9 4 It is true, says Hall,that "recklessness resembles negligence in thatboth include an unreasonable increase in the riskof harm; both fall below the standard of 'duecare). '

7i10 On the other hand, it is a "distinctive

97P. 179.9" P. 114."P. 115.10' P. 83."'1 P. 113.1"2 P. 112.1 P. 116."4 P. 121.1 P. 115.

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state of awareness" which intention and reckless-ness have in common, and which is missing in thecase of negligence. "[U]nless it is determined thatthe defendant knew he was increasing the risk ofharm, it cannot be defensibly held that he actedrecklessly."' 0

This determination, however, apparently can becompensated by the supposition that the defendantknew he was increasing the risk of harm: "[T]ofind a defendant reckless," Hall maintains, "thejury needs to be informed that.., they must findthat his conduct fell below the standard of 'duecare' and that the defendant knew he was increas-ing the risk of harm; and that they are warrantedin so finding if they find that a reasonable man inthe given situation would have been aware ofit.,,107

The bearing of this rule of procedure on the sub-stantive law was dearly expressed in Coynnwn-wealth v. Welansky: "Knowledge of facts on ac-count of which a reasonable man would have seenthe risk, is equivalent to the knowledge of the riskitself."' 03 In other words, the awareness, the in-dispensable element of the recklessness, need berelated only to the material facts. If this awarenessis established, the rule of procedure, as displayedby Hall, permits the supposition that the de-fendant knew he was endangering other people byhis conduct. This supposition depends, to be sure,on the further assumption that a reasonable manwould have seen the risk in the given circum-stances.

However, if this does satisfy the requisite of the"awareness of increasing the danger," then thequestion arises as to what the liability of the de-fendant is based upon if he did in fact not knowthat he by his conduct endangered other people.If the defendant knew he endangered other people,his liability rests on the fact that he acted never-theless. If, however, he was conscious only of thefacts increasing the risk, not of the risk itself, heis liable because he should have been conscious ofincreasing the risk if a reasonable man would havebeen aware of it.

The contrast between a person who disregardsthe risk he has taken and a person who was capableof thinking of the risk, but was in fact not awareof it, corresponds to the distinction made in Ger-man criminal law between perpetrators who actedwith conscious negligence and those who were not105 P. 120.'1 P. 121.'0s 316 Mass. 383, 55 N.E.2d 902, 910 (1944).

conscious of their negligence: bewusse und unbe-wusste Fahrliissigkeit. This distinction underliesthe definitions of "recklessly" and "negligently"in §2.02 (2) (c) and (d) respectively of the ModelPenal Code. As we remember, Hall excludes negli-gence from the mens rea, since inens rea requiresawareness, and it is "awareness of increasing thedanger" which separates recklessness "completelyfrom the genus of negligence.""' Such awarenessis, as Hall admits, presumable and imputable incases of reckless conduct. I submit that awarenessbecomes fictitious if it can be presumed and im-puted to the defendant, subject to the applicationof the reasonable-man standard. I don't see anyreason why the same imputation should not beavailable in cases of negligence if a reasonable manunder the given circumstances would not haveacted as did the negligent defendant. For "a personacts negligently.., when he should be aware of asubstantial and unjustifiable risk.""10 Thus, Hall'sstandpoint that recklessness creates criminalliability, even if awareness of increasing the dangerwas not determinable, while negligence, on theother hand, does not, is in my opinion untenablefrom the viewpoint of juridico-logical deduction.

To support his position, Professor Hall en-deavors to prove that even the "traditional ethicalground-the insensitivity of these harm-doers tothe rights of other persons"m-is not strongenough to justify punishment of negligent harm-doers. We may restrict ourselves to the discussionof only the most important arguments.

Hall does not believe that punishment "willsensitize thoughtless individuals to the rights ofother persons." "[T]he legal apparatus cannotassure such a dose association between negligenceand pain as to provide any support for the use ofpunishment on this ground."'m But it is obviousthat this argument could also be used againstpunishing crimes intentionally committed.

Furthermore, Hall points out that there is noevidence that punishment or the threat of it maydeter negligent harm-doers."3 However, it is notso much deterrence but correction that is aimedat in the punishment of negligent persons. More-over, punishment for negligent harm-doers should,according to Hall, be greater than usually provided,since "the cause of negligence may be so deeply

09 P. 128.nOMODEL PENAL CODE §2.02(2)(d) (1962)."I P. 138." Pp. 138-39."' P. 139.

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RICHARD M. HONIG

rooted in the personality structure of the inad-vertent harm-doer as to require a great deal ofpunishment to alter his habits. 114 Since in thisconnection Hall reproaches the legislators of Con-tinental criminal codes for employing an "incon-gruous makeshift" it must be remembered that acrime committed by negligence is generally con-sidered to be deserving of milder punishment thana crime done intentionally, because a man causingharm intentionally to other people a priori ap-pears more guilty than a man acting negligently.

Finally, if inadvertence is rooted in the person-ality structure, the attitudes of a person insensitivewith regard to creating danger are, according toHall, not matters of his choice; "hence there is nowarrant for punishing him on... traditional moralground."' ' I should reply that everyone responsi-ble for his conduct is obliged to watch and educatehimself and, for this reason, he is liable for hislaisser faire, laisser aller.

G. Mens Rea and Strict Liability

In chapter 10 Hall deals with the problem ofstrict liability, i.e., "liability to punitive sanctionsdespite the lack of nmens rea."16 Since criminal lawis based on moral culpability "strict liability can-not be brought within the scope of penal law."" 7

Thus, a "careful analysis of the established law ofstrict penal liability" appears justified."'

Since there are numerous public welfare offensesproscribed without any allusion to mens rea, mensrea, it is concluded, is not made a necessary basisof punishing them. Hall espeoially calls our atten-tion to those proscriptions against "knowingly" or"wilfully" doing certain acts, where then "followsa provision omitting the above terms, and usuallyfixing a lesser penalty."'19 "It is this sort of pro-vision," Hall adds, "that usually comprises strictliability." Does this form of provision necessarilylead to the conclusion that the legislators estab-lished strict liability, or did they perhaps think ofnegligent behavior?

Hall himself calls forth this question by quotingthe decision Reg. v. Woodrow (1846), in which thecourt said: The defendant (a tobacco dealer)was "bound to take care .... In reality, a prudentman who conducts this business, will take care

114 P. 139.P15 P. 138.

1P. 325.17 P. 336.118 P. 326.119 P. 326.

to guard against the injury he complains of .... ,,2Thus, one is permitted to conclude, Woodrowwas punished because he did not take that care aprudent man would have taken in conducting hisbusiness.

Similar deliberations hold true for early Ameri-can decisions. Hall refers especially to Common-wealth v. Farren (1864), in which the court em-phasized among other viewpoints the importanceof protecting the community against the commonadulteration of food and the reasonableness ofimposing the risk upon the dealer and thus hold-ing him "absolutely liable."' Later on, Hallremarks very pertinently that many of the publicwelfare regulations "suppose a continuous ac-tivity, such as carrying on a business. This im-plies that general standards regarding such con-duct are important rather than isolated acts."'

Nevertheless, these public welfare regulations"do not," according to Hall, "provide any justi-fication of penal liability at the present time."'m

In opposition to this conclusion, I would submitthe question: Is it not just these general standardsupon which the decision depends as to whetherthe defendant is liable? To reproach someone withnegligent conduct means that he is blamed fornot having observed that care which a prudentman is expected to observe. It is the differencebetween the defendant's conduct and the conductof a prudent man upon which the reproach isbased. More specifically: With regard to negligentconduct-the usual form of public welfare of-fenses-the defendant is blamed because he didnot realize that by his conduct he violated certainregulations. Hall himself admits "that, despitethe avowals of strict liability, intent and negli-gence actually play some essential part in suchoffenses."' 2 "[T]herefore," he continues, "itmay be urged... that they are designed to catchthe willful and the negligent; they are not intendedto penalize those who are faultless. But the statutesare so phrased as to include the innocent, andthese are caught occasionally as a result of in-competent administration."'

25

It seems to me most regrettable that Hall deemsthese arguments untenable, although, later on,he concedes "that, from the very beginning of

120 P. 327.121 P. 328."2P. 331.13p. 331.14p. 342-43.12 P. 343.

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the modern law of strict liability, many judgeshave suggested that the defendants were negligentand that, had they used due care, the violationwould not have occurred.' 126

Deliberations like these lead, in my opinion, tothe assumption that the judges would not havefound the defendants guilty if their conduct hadnot evidenced their negligence. Consequently,decisions in which defendants were sentencedwithout any evidence of their negligence shouldbe frankly acknowledged as erroneous.

Perkins has remarked that "the so-called 'strictliability' means much more strict than usual, butit does not mean that the doing of the prohibitedact requires conviction under any and all cir-cumstances." '' - Obviously, much stricter thanusual is a defendant's liability when with regardto his profession or special licenses he is expectedto observe special care in his dealings with otherpeople or in possibly endangering them by hisconduct. The standard of his negligence is not theconduct of a prudent man in general, but theconduct of a conscientious man of his professionor licensed activities.

III. TEE Docrm~ms

Passing on to Hall's doctrines, we must re-member that they are not to be understood astheories in the usual meaning of this term, butas "propositions more general than the rules butlacking the extensiveness of the principles."'mTheir function is to complete the specific crimes."[Only after the doctrines have been added tothe rules has the penal law, i.e., the definitions ofall the specific crimes, been fully stated."19 Thus,"a complete definition of specific crimes mustalways include the doctrines."'130 However, "therules provide definitions of the 'normal' criminalconduct of 'normal' persons committing specifiedharms in 'normal' situations."'' The doctrines,on the other hand, are mostly concerned with"unusual or abnormal states of mind orsituations."' Therefore, "the terms of the rulesare to be given the meaning required by the doc-trines in their affirmative significance."' In otherwords, since "the rules do not completely define

1" P. 357.12 PEKxxMs, CzmmnAL LAW 695 n. 12 (1957)."'P. 17.n9 P. 19.13o P. 21.131p. 21."' P. 19.2 P. 22.

the specific crimes," their meaning "must bedetermined by incorporation of the relevant doc-trines in their affirmative significance."" 4

The starting point of Hall's train of thought, towit: most of the doctrines concern unusual orabnormal situations, has its parallel in the Germandoctrine of the "negative Tatumstiinde," i.e.,negative material circumstances, such as self-defense, legitimate commands, consent, and soon. The legal effect of these circumstances is thatthe action is not illegal, and therefore no crimeis committed. The effects of Hall's doctrines, incontrast, are most heterogeneous: Insanity andinfancy absolutely exclude criminal capacity;intoxication and mistake may exclude responsi-bility; coercion and necessity exclude free will, abasic element of nens tea; attempt and complicityare modalities of committing crimes; solicitationand conspiracy are delicta sui generis. Thesestructural and functional differences of the sub-jects of the doctrines, on the one hand, and Hall'sproposition, on the other hand, repeated time andagain, though phrased differently, "that law isfully stated when the doctrines are added to therules," provokes the following question: How isthe unexceptive requirement of the "incorpora-tion of the relevant doctrines in their affirmativesignificance" to the rules to be carried out whentheir effects on the meins rea are not as obvious asin the cases of insanity or infancy?

A. Complicity, Solicitation and Conspiracy

Complicity is by reason of its nature of affirma-tive significance. Added to a specific crime itmarks this crime as an exception from the ruleswhich by imputing the act to one person only"provide definitions of the 'normal' criminalconduct.., in 'normal' situations." Thus, byincorporation of complicity, not "normality" ofthe situation is determined, but just contrariwisean abnormality.

In the administration of justice as well as intextbooks solicitation and conspiracy are justlyconceived to be delicta sui generis. Nevertheless, anegative significance of these terms may be recog-nized in relation to the crimes solicited or con-spired befbre these crimes are committed. It is intheir commissions in which the affirmative sig-nificance of solicitation or conspiracy may befound. However, when the solicited or conspiredcrime is committed, the conspiracy is no longer

1P. 21.

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(as in former days) considered to be merged in itbut is punished independently of it, while solicita-tion takes on the meaning of aiding and abetting,and the solicitor is punished as principal. Thus,there is no incorporation of solicitation or con-spiracy in the crime committed. They only maybe useful as evidence. Hall does not explain howthe doctrines of complicity and solicitation andconspiracy are to be incorporated "in order thatcomplete definitions of crimes be provided."

B. Criminal Attempt

Likewise I could not find any indication forcompleting the definitions of specific crimes withregard to the doctrine of criminal attempt. Halldefines the aim of this doctrine in the section on"Rules and Doctrine" in chapter 15. It "empha-sizes the common features of all the harms de-scribed in the rules defining specific criminalattempts.' 1 35 These specific attempts are, if Iunderstand Hall correctly, consummated crimes.Consequently, there is no reason for making use ofthe doctrine of criminal attempt so that the defi-nitions of these crimes be "fully stated." But"these descriptions are particular instances ofthe doctrine." ' 6 This presumably means that thedoctrine is to be applied to all attempts adjudi-cated in accordance with a general definition ofattempt, as for instance that given in article 1,section 2 of the Penal Law of the State of NewYork. If in these cases the doctrine of criminalattempt is applied in its "affirmative significance,"i.e., not indicating an abnormal situation, theconsummated crime would be put in the place ofthe crime attempted. But it is the consummatedcrimes which, save the exceptions of the "specificattempts" mentioned above, are described bythe rules. Therefore I cannot conceive what thedoctrine of criminal attempt in its affirmativesignificance might contribute to the completedescription of the crimes in question.

In the section on "Preparation and Attempt"in chapter 15, Hall reviews the difference betweenpreparation and attempt. He reminds the readerof the efforts to define the attempt by descriptiveterms such as "moving directly toward the com-mission of the offense," "the commencement ofconsummation," "direct movement, tendingimmediately," "proximately," and so on."' 3'

Hall seems to be inclined to dismiss these criteria

13 P. 575.136 P. 575.137 P. 578.

as "a mere formality."1 3 This is understandablein view of their variety. However, the criterion"commencement of consummation" means thesame as the formulae "comnencement d'exncution"in the French penal code and "Anfang derAusfiihrung" in the German penal code, bothterms implying the beginning of the punishableaction. This criterion serves as a very usableyardstick, since it covers any action which dueto its natural coherence with the specific crimeappears to be part of it. Hall prefers the criterionof the "proximateness" of the harm done to theintended ultimate harm. 9 Hereby he shifts thecenter of gravity of the problem from the act assuch to its effect. However, not only the attemptbut also the preparation of the crime endangerssocial interests and is in so far harmful. Since underthis viewpoint there is, as Hall admits, "no es-sential difference between states of preparationand criminal attempts,"'4 0 the boundary betweenpreparation and attempt would depend solelyupon the question of the degree of danger broughtabout by the preparation. For determining thisdegree there is no other gauge but the free estimateof the judge.

With regard to the so-called impossibility of anattempt, Hall dismisses the distinction betweenfactual and legal impossibility, as to which differ-ent legal consequences were generally recognizedin American adjudication until Faustina v. Stateof California, 345 P.2d 543 (1959). Hall rejectsthis distinction as untenable, since the "view of'legal impossibility' has no greater validity thanthe earlier theory of 'absolute impossibility'."' 4'He prefers as the criterion the "apparent objectiverisk of harm."'' But the probability of successmust have appeared high.'4 ' "This suggests thatthe reasonableness of the effort provides a limita-tion."' 4' In other words: The principle of legalityis observed and punishment is justified if theperpetrator reasonably deems those external factsexistent which would lead to the desired effect ifthey were in fact existent. Decisive is thereforethe nens rea of the perpetrator manifested by hisconduct which would have caused the effect if thecircumstances had been congruous to those hebelieved to be existent.

1np. 579."1 P. 583.140 p. 583.141 P. 590.4 P. 591.3 '. 592.

'4 P. 592.

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This standpoint corresponds to the so-called"subjektive Theorie" of the former GermanReiclisgericht, not recognized, however, but vigor-ously opposed by almost all German writers oncriminal law. In limiting responsibility by de-manding "reasonableness of the effort," however,Hall makes allowance for an objective criterionrelative to danger. Hereby he recognizes the dis-tinction between dangerous and non-dangerousconduct within the realm of impossibility. I wonderhow far Hall's criterion of the "reasonableness ofthe effort" is compatible with his statement:"There are no degrees of impossibility and nosound basis for distinguishing among the con-ditions necessary for the commission of theintended harm.' 4 5

C. Mistake

Hall's arguments concerning the doctrine ofmistake are oriented on the contrasting legal prov-erbs "ignorantia facti excusat" and "ignorantiajuris neminem excusat." The rationale of the firstproverb is explained by the insight that "themorality of an act is determined by reference tothe actor's opinion of the facts, including hiserroneous beliefs."' ' Thus, mistake of fact is adefense provided that the actor's viens rea waslacking due to the fact that he did not doubt themorality of his act. This should be conceded if hisperception of the facts, "as they reasonably ap-peared to him,"'47 would exclude criminal liability.By the requirement: "as they reasonably appearedto him," the behavior of a "reasonably cautiousand prudent person" is introduced as a criterion.If the actor's behavior does not correspond to thisstandard, i.e., if he acts unreasonably, he is "crimi-nally liable despite the complete lack of criminalintent."'' This means, in my opinion, that hisresponsibility for an act done intentionally, butwithout the care a reasonably cautious and pru-dent man would have shown with regard to itsconsequences, is, in the last result, based on theblame of negligence. Hall's qualification: "mis-take of fact is a defense if, because of the mistake,mens rea is lacking"'49 should be accepted underthe proviso that the mistake was not caused bynegligence.

In his contribution to the discussion on error

145 p. 589.

'4' P. 363.147p. 366.143 P. 367.'49 pp. 365-66.

juris, Hall's starting point is the demand of reli-ance upon legal authority.15 Individual opinionsand non-authoritative declarations are of novalidity. This is, according to Hall, "the rationaleof ignorantia juris neininem excusat."' Accordingto this rationale ignorance means lack of coinci-dence of the defendant's opinion "with the sub-sequent interpretation of the authorized law-declaring official."",' The recognition of the formalprinciple of legality implied in this statementappears justified if we admit that the criminal lawexpresses the moral ethics of the communitywhich are meant to serve as everyone's guidance.For "the simple morality that is relevant to crimi-nal law" can be understood by any normal adult.iIt is this understanding, not "knowledge of formalpenal law" that is at the bottom of the axiom"ignorantia juris neminem excusat."' 4

If the perpetrator's conduct is blameworthybecause it is contrary to the simple morality of thecriminal law, the blame must be limited to errorsrelative to proscriptions of the criminal law.Ignorance of private law is not inconsistent withthe ethical principles expressed by the rules ofcriminal law and is to be "treated as a mistake offact."155

Two objections may be permitted: First, casesof fraud and of bigamy often give rise to ardentdiscussions as to whether the mistake in issue wasavoidable or not. In borderline cases the simplemorality of criminal law is often clouded. Secondly,if a mistake of private law is treated as mistake offact, a proviso should be made that the mistakeis not excusable if it was avoidable by greatercare on the part of the defendant.

Incidentally, Professor Hall's standpoint re-minds us, as in the case of the impossibility of anattempt, of the position taken by the formerGerman Reicksgericht, which distinguished be-

tween mistakes concerning criminal and non-criminal (ausserstrafrechltlichent) law. Only thelatter mistake was declared excusable. However,

the distinction did not prove satisfactory andtherefore has been considered untenable by al-

most all German scholars. After 1945 it wasrelinquished by the Bundesgerichishof, the suc-cessor to the Reichsgericht.150 P. 382.1 P. 383."12 P. 383.13 P. 413.14 P. 413.15 Pp. 394, 399.

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D. Necessity and Coercian

The last subjects that remain to be mentionedamong the doctrines are necessity and coercion.There is no difference of opinion relative to themeaning of these terms: People acting undernecessity or coercion harm persons innocent ofany wrongdoing. Furthermore, there is no doubtthat a cause for arguing about such actions existsonly if the physical force (in the case of necessity)or compulsion (in the case of coercion) was notirresistible, so that the free will of the person underpressure was not excluded. Questionable remainthe legal consequences: Do necessity and coercionjustify the acts that harm innocent people, oronly excuse them? Since this question is commonlyplaced in the foreground of discussion, I am sur-prised by Hall's preliminary statements that"[E]xcuse and justification are pertinent and usefulin procedure .... But they are fallacious and

misleading when they are applied as notions ofsubstantive penal theory.'

56

Justification and excuse are terms indicating theconsequences of acting under pressure, as theydo for instance in cases of self-defense and com-mand or order. In all such cases there is no punish-ment, provided the act was in fact justified. Iwould not know of any reason more stringent than

the exclusion of punishment which would leadto the conclusion that necessity and coercion areparts of the system of substantive criminal law.Incidentally, it seems strange to me to find theessential arguments concerning justification andexcuse not in chapter 12, "Necessity and Coer-cion," but in chapter 7, "Harm." If it is the pres-sure exacted by necessity or coercion on account ofwhich a person is not held responsible, then it is

his acting, not the harm caused by it, which isjustified or excused. This becomes evident whenfor instance A, who wants B to be killed, instigateshim to attack C, and C kills B in legitimate self-defense. By using C as his instrument, A is respon-sible for the death of B because A's conduct is notjustified, but punishable as a purposely committedcrime.

As to the question under which conditions ac-tions under pressure are justified or only excused,Hall seems to reject this distinction a limine. Herefers approvingly, if I am not mistaken, to the

doctrine "that a very high probability of completedestruction by physical forces is a justification forsacrifice of some to save some, provided the method

156 P. 233.

of selection is fair."' If this would be so, the personchosen to be sacrificed would not have the right todefend himself! As to coercion, the distinction,he says, breaks "down completely. ' ' 18 Never-theless, Hall admits "that the coerced person isjustified in certain situations and that the coerceris nonetheless liable.""' On the other hand, Hallrealizes that "if coercion is a form of justification,then, in the usual mode of analysis, the coercershould not be liable...."160

There can be no doubt that he is liable, becausein the first place he uses another person as hisinstrument, and in the second place the act of thecoerced one is not justifiable, but only excusable.This conclusion, however, appears to Hall un-tenable since the coerced person remains accordingto American law responsible for murder, in Canadaeven also for kidnapping, assisting in rape,mayhem, arson, and other offenses.16' These ex-ceptions, in which the coerced person is under theobligation to disregard the danger imminent tohimself if he is asked to inflict grievous harm ontoinnocent people, necessarily leads, in my opinion,to the conclusion that the doctrine of coercionincludes the requirement of evaluation; in otherwords, the coerced person may cause some smallharm to an innocent person in order to preventgrievous harm to himself, but he is not permittedto cause equal or more grievous harm to an in-

nocent person. To Hall, on the contrary, thoseexceptions prove that coercion does not create anexcuse; for "excuse implies complete exculpation,as in insanity or infancy, no matter what harmwas committed."''1 Against this argument I maysubmit that the effect of coercion in modifyingcriminal responsibility depends on the foresightof the legislators or on the opinion of the court,whereas insanity and infancy are circumstanceswhich absolutely exclude responsibility by reasonof the lack of criminal capacity. Thus, any inferencefrom the latter circumstances to the former relativeto their effectiveness is not persuasive.

CONCLUSION

The reader will agree that in reviewing Hall's

General Principles of Criminal Law I have re-

mained within the limits of immanent, criticism.

157 p. 434."1 P. 235.1 P. 236.M' P. 235.

161 P. 235.162 P. 235.

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I deemed such criticism necessary since juridicallogic led me to results different from the author'sstatements relative to the scope of his principles,and contrary to the thesis concerning his doctrines,summarized on page 21, that "A complete defini-tion of specific crimes must always include thedoctrines."

Questioning the cornerstones of Hall's systemmeans, of course, questioning the concinnity ofhis system as such. Nevertheless, the author'sendeavor to build up a system of criminal lawundoubtedly is meritorious. It will prove to be asteppingstone and an incentive for further de-velopment of the system of criminal law.

1963]