MARIANO CIAFARDINI

THE CHALLENGES OF CRIMINAL LIABILITY.

NEW ALTERNATIVES, LIMITS, FORMS AND GOALS 

MARIANO CIAFARDINI
Secretary of Criminal Policy and Penitentiary Affairs,
Ministry of Justice, Buenos Aires, Argentina

 Modern society imposes upon the actors of the criminal system of justice (jurists, legislators and judges, in that order) the adoption of measures oriented toward the achievement of the ends that characterize criminal law. It is essential that today's dogmatics of the illicit act aim at normatizing categories within the theory of punishable acts with a view to providing an answer to new social phenomena, without relaxing any individual rights guaranteed in the law.

The proposed normatization is the basis for the full operation and respect for a democratic state and the rule of law. It is not unusual among us to hear arguments against the normatization of criminal law as a guiding instrument of state punishment. Those who oppose the normatization of criminal law maintain that the introduction of normative criteria in the various categories of the theory of the offence carries with it lesser guaranties for the individual. This idea, equally widespread and wrong, fails to take into account the social configuration of the end of the XXth century and the beginning of the XXI^st. It seems that a new era has begun: that of special prevention; the end of criminal law is no longer the protection of legal interests but the validity of the norm.

With respect to the definition of the offence, it is necessary to abandon the old causal-naturalistic doctrine to ascribe results to conduct. The analysis should not be one of a casuistic but of a regulatory nature. As to culpability, individuals must begin to be seen not as flesh-and-blood beings - as beings who are part of the natural world -, but as citizens with a social role to play. By this, I intend to provide grounds for a functional concept of culpability, forsaking all naturalist notions in this area as well.

This functionalist criterion of culpability allows the introduction of the imposition of sanctions to collective legal entities into the criminal system; these legal persons, being entitled to rights and constrained by obligations, have a social role to play and actual capacity to threaten property or interests protected by the state (or, as I maintain here, to challenge the validity of the norm).

a) The Protection of the Validity of the Norm and Special Prevention

The new dogmatic conception has evolved around two axes: (1) a different notion regarding the ends of state punishment and (2) a focus on the question of whether the main purpose of criminal law is the protection of legal interests or the validity of the norm.

Thus, those who see the mission of criminal law as the protection of legal interests and define these as «every desirable social state which the law wants to shield from harm⁽¹⁾», adhere either to a retributive theory of the sanction or – and they constitute a vast majority today – to a relative theory of the sanction (and usually, general prevention). I cannot - and not only because of the importance that Professor Roxin has had in the Spanish-speaking academic world and especially in my country, but also because this will probably become the prevalent view in a few decades -, I cannot, then, not draw attention to this respected German professor's opinion in that it is primarily special prevention what is to prevail as the grounds for the imposition of sanctions by the state.

«My conclusion is that, when it comes to fair sanctions, that is, those that do not go beyond the limits to fair punishment that arise from the principle of culpability, special and general prevention certainly still dominate the theory of the ends of the sanction, although these ends have found today a much richer content and a much more detailed scope for application than in the past. Also, and contrary to the current trend, special prevention has shown to play, as always, a central role in the theory of the ends of the sanction, while general prevention, which has been brought to the forefront these days, though certainly still deemed equally important, has been considered of relative importance with regard to the ends of the sanction, since its methods and scope are for the most part outside criminal law⁽²⁾» .

I hope I am not mistaken (and this is probably a wishful thinking) in asserting that special prevention will become the foundation on which the modern conception of the ends of the sanction shall develop. However, I think the view that advocates replacing the protection of legal interests as the mission of criminal law for the protection of the validity of the norm is regaining momentum today. With this I am trying to introduce a much- debated issue on the ends of criminal law and whether these lie in the protection of legal  interests or rather, the validity of the norm.

The social order cannot be exclusively defined in terms of goods but it also has to be defined in terms of the roles of legal persons. It is clear that criminal law has never restored a legal interest that has been harmed. Also, whenever a legal interest is irremediably lost (for example, in the case of a patient who, it has been established, will die in a few minutes due to poor medical assistance) the conduct that constitutes an attack on the patient's life, such as the firing of a gun still must be punished; but then (say functionalists) it is not a matter of legal interest but of guaranteeing those who are members of a society the expectancy that the norm banning homicide is valid, even when the legal interest it aims at protecting has been irremediably lost.

It is not a question of protecting the legal interests of individual persons (who may, in fact, consent to the destruction of a legal interest, thus turning a conduct licit, for example, by consenting to somebody else's trespassing their property) but of guaranteeing society's expectancy as regards the validity of the norm. In this last example, we cannot say the legal interest has not been hurt, but rather, that the action carried out by the social agent does not challenge the validity of the norm and that, therefore, it cannot be sanctioned although the legal interest has actually been affected.

«Society maintains norms and refuses to think of itself in any different way. According to this conception, the sanction is not just a means to maintain social identity but it constitutes that maintenance itself (…) The answer to a social problem through the application of criminal law is given through the application of the legal system as a partial social system, and this means that the answer is given within society. Thus, it is impossible to separate the criminal law from society⁽³⁾».

The usual objection to this theory, i.e. that the theory could offer protection to any legal order is, in my view, invalid. Advocates of the theory of the legal interest maintain it would be impossible to turn state protection per se, the existence of a given political party or even, the purity of the human race, into a legal interest. These objections may seem sound enough, but from the perspective of the theory of the legal interest one can also choose norms to regulate people's lives. The theory of the legal interest shares with the functionalist theory the same critical starting point. The objection is a political, not a scientific one⁽⁴⁾.

The advocates of the theory of legal interests also reject functionalism on the basis that this theory, in its conviction about the value of legal norms, has raised them to the concept of legal interest and it is the legal interest - «respect for the validity of the norm» -, what criminal law protects.

Time will show whether any of these conceptions (special prevention – protection of the validity of the norm) prevails over the other, since the protection of the validity of the norm is not compatible with special prevention and viceversa.

The debate about the ends and meaning of state punishment is not over. And it will never be, since it is practically impossible to find the right answer. I have only attempted here to highlight the new trends that have developed over the past years (special prevention and protection of the validity of the norm). To sum up: «The discourse on the meaning and ends of the sanction is not an affair to which an end could have been put if we had found once and for all the «right» answer to it, but one of those tasks for which there shall never be a final answer⁽⁵⁾».

b) The Acceptance of Normative Limits to Causality

The old theory of causality laid down naturalistic parameters for the imputation of a result to a given conduct. Thus, according to the traditional theory of equivalence every conduct is a cause providing that the result does not disappear if the cause is mentally suppressed. The simplicity of this theory, advocated by Julius Glaser in 1858 and by one of the members of the Reich's Supreme Tribunal in Germany, Justice von Buri, caused it to be rapidly accepted by jurisprudence and books of authority, a situation which lasted into the 1960's. The extent to which this theory could be stretched was (from its inception) clearly disproportionate to its intended aim. For example, if there was a road accident, the cause of the result (in the sense given it by the theory of the condition) was not only the driver's imprudence but also the car maker, the building company responsible for the construction of the freeway, the driver's parents, etc.

An attempt (naturalistic, of course) to limit causality was made by the theory of social adequacy. According to this theory (put forward by v. Kries) a cause will only be legally relevant if it is not improbable. This theory qualifies causal processes according to statistical criteria (was the result likely to happen?) and to criteria based on general perceptibility (did it happen in the usual way?); however, there are cases when certain causes can be normatively relevant even if the events in question did not occur in the usual way.

The main shortcoming of the theory of equivalence (and of its corrective theory, the theory of social adequacy) is that it relies, erroneously, on statistics, experience and models that can be perceived through the senses instead of being based on the aim of criminal laws⁽⁶⁾.

Welzel's final - conduct doctrine brought about dramatic changes for several aspects of the theory of the offence and the resulting crisis of the concept of conduct is no other than a crisis revolving around the concept of subject that had served as a model. Up to then, the model of subject of criminal law was an individual whose behavior was determined by the influence of the method of analysis of natural sciences. In this sense, all human behavior was studied in the light of the law of causation, which gave way to a notion of conduct in which human beings were nothing more than a causal factor mediating between conduct and result. Welzel not only changed the concept of conduct and, consequently, that of culpability, but he also changed the notion of subject as such and the notion of society⁽⁷⁾.

From here, Honig took a critical step forward and denied that the ontological category of causality reflected the relationship between conduct and result correctly. In his view and bearing in mind the general ideas set forth by Larenz about imputation, what really counted for the law and for the definitions of the offence was something completely different: whether the result could be seen as the workings of a person and, consequently, whether it could be attributed to them⁽⁸⁾.

It is the modern theory of objective imputation that laid the foundations for the attribution of human conduct to legal subjects - and for the ascription of results to conduct - by acknowledging that individuals live today in a complex society, where everyone has a social role to play and expects others to behave according to their own social role. Criminal laws do not govern human behavior arbitrarily but they do so in order to make social life possible, which cannot exist without the safety of expectations.

In a highly industralized society, characterized by modern sociology as the collectivization of social life, we are faced with a situation in which it is necessary, on the one hand, to set limits to the liability of social actors, and, on the other, - if we accept a functionalist notion of culpability - to admit that not only physical persons can be criminally liable but collective legal entities as well.

As regards the limits modern criminal law must set for the imputation of results to conduct, there are cases when, although the perpetrator creates a risk that may endanger other people's property (for example, the car maker's) such behavior falls outside the protective scope of criminal law since the benefits of societies having a car industry outweigh the drawbacks. Today life without the automobile has become inconceivable and since a society without risks is equally inconceivable and nobody is seriously thinking of living outside society, a normative guarantee entailing no risks has also become impossible: on the contrary, risks inherent to social life have to be irremediably tolerated, as an allowed risk⁽⁹⁾.

It goes without saying that a free society can only tolerate certain risks if the activity that creates the risk is justifiable to whoever will bear the costs: in a free society, freedom of behavior cannot be accepted to the detriment of others.

Social cohabitation has to be built upon a consensus between co-associates, a consensus that certain parameters of behavior need to be followed since, otherwise, their existence would hinder rather than allow a harmonious social life. As a consequence of this consensus, which, at least at the theoretical level, must underlie norms of social behavior, it becomes essential that each individual be able to organize their activities on the assumption that others will also act in conformity with the law⁽¹⁰⁾.

I have said that there are some risks it is necessary for individuals to bear if they are to live in society. I would like to add that social life is impossible without division of labor. No individual can be in charge of everything. Think of complex medical equipment or aircraft maintenance, cases in which if each of the participants had to supervise everybody else's work, they would not be able to perform their own tasks. Modern society cannot be conceived without the division of labor: if each social actor were answerable for everything, then there would be no benefits in the allotment of tasks - to say the least - since citizens would constantly be under the threat of criminal sanctions. No modern criminal law is possible without a principle of trust.

c) Liability for the Event Based on a Functional Theory of Culpability. Criminal Liability of Collective Legal Entities

As it has already been explained, modern dogmatic trends tend to maintain that the aim of criminal law is not the defense of property or other values protected by the law but the reaffirmation of the validity of the norm.

Thus, Jakobs explains his position by means of the following example: a driver who is aware he is drunk when he drives his car and does not take into account the prejudicial consequences his conduct may have on the lives of others is expressing through his behavior complete disregard for the life of others. What this kind of behavior confirms is just the opposite of what is specifically provided in the criminal law for negligence cases. This contradiction of norm through conduct is a breach of the norm. This disregard for the norm – Jakobs goes on to explain – gives way to a social conflict in that it challenges the norm as an orientation model. The sanction is not an outside event, it is meaningful, i.e. the meaning of the deviant behavior is not determinant, what continues to be determinant is the norm⁽¹¹⁾. To sum up: the end of punishment is to help maintain the norm as an orientation model for social relationships. The content of the sanction is a response, imposed on whoever has challenged the norm⁽¹²⁾.

This view has substantially modified the concept of culpability. The paradigm of free will as an inescapable prerequisite of culpability based on the assumption that human beings are totally free to decide how to behave cannot be demonstrated empirically⁽¹³⁾. The flaw in the old criterion has been to regard human beings and their freedom as they exist in the natural world and to have been completely oblivious of the dimension of their social meaning⁽¹⁴⁾. What is taken into consideration today to measure the existence or lack of culpability is the more comprehensive social role of the individual: its role as a law-abiding citizen⁽¹⁵⁾.

Instead of the objective value relationship jurists now resort to society's function (the system's). The presuppositions underlying culpability end up being determined according to teleological derivations of positive general prevention, thus losing their significance vis à vis legal subjects. The notion of culpability has to be functional, i.e., it has to be in line with certain normative principles. The evolution of the notion of subject – from subject in the natural world to subject in society - has paved the way for the discussion of criminal liability of collective legal entities and organizations.

Modern theoreticians have found justification for the criminalization of organizations in ideas such as the need to protect legal values or the validity of the norm, without forsaking the principle of culpability as the sole source of legitimacy for sanctions or punishment. There is no doubt that an organization as such can challenge the validity of the norm, regardless of whether physical persons are criminally liable or not.

In order to hold a legal entity criminally responsible it is necessary to verify whether a physical person has committed a crime while conducting transactions within the scope of the entity's business - from which the business should benefit - and also whether surveillance measures have been lacking or been inadequate to avoid the commission of the illegal act. It should also be mentioned that even those not personally involved would be criminally liable, according to the current theories on authorship and participation⁽¹⁶⁾.

There is also a need, from a political-criminal perspective, for the introduction of criminal liability of organizations. Several authors understand that criminal responsibility should only fall on those individuals whose conduct may be attributed to the organization on whose behalf they act, namely actions carried out by its organs, through its legal representatives or managers. Another condition is that the act in question should yield benefits for the organization (either actual or potential): the so-called 'functional relationship' between the act and the organization's scope of business, a normative relationship that does away with any remains of objective liability.

The criminal system has reacted so far by resorting to parameters of individual authorship to address systematically organized crime. These parameters have to be supplemented with a doctrine based on social systems arising from the relationship between society and wrongdoing. By system I mean a set of organized relationships which may adopt legal form through the issuance of a charter.

Just as there is personal liability and there are individual sanctions through which an individual's character may be improved, a sanction may also perform a social function and serve the purpose of improving the ends and organization of the social system. Criminal liability may be attributed to any unit taking part in social life, a physical person or an organization made up of physical persons. In other words, even if an organization is fictional as a phenomenon, it is not fictional as social system. It is for this reason that either individuals or social systems may be blamed from a social and ethical perspective, since a social system, as human institution, must produce, accept and fulfill ethical obligations⁽¹⁷⁾. A functional concept of culpability must necessarily acknowledge criminal liability for organizations, as subjects with a role to play in the social system.

At this point I would like to make it clear that what has been suggested here is, in my view, the paradigm of a liberal de jure State of the XXI^st century. It should also be pointed out that the modern social configuration cannot relax in any way any of the individual rights guaranteed by international instruments and conventions, which have been incorporated into positive law by most states. In sum, I think this is a criminal law that has adjusted itself to today's world, a citizen's criminal law, as opposed to an enemy's criminal law. An enemy's criminal law optimizes the protection of legal values; a citizen's criminal law optimizes spheres of freedom⁽¹⁸⁾. Criminal law is not so much about protecting legal values anymore, but about reestablishing the validity of the norm. Individuals are not regarded as flesh-and-blood beings but as legal subjects fulfilling a social function. It is not possible to set naturalistic parameters to attribute conduct to results: the criterion has to be a normative one.