Criminal Philosophy

Author: Chen Xingliang
Publisher:
Publish Date: 2004-02-01
Features: Excerpt In summary, the issue is not whether normative evaluation factors should be included in the concept of culpability, but rather how to understand the relationship between normative evaluation and psychological facts. List and Soviet criminal law scholar Uchevsky advocated distinguishing between narrow and broad culpability, thereby introducing normative evaluation factors. This approach has significant drawbacks and is therefore not advisable. The normative responsibility theory proposes the concept of expectation possibility. Regarding the status of expectation possibility in culpability, there are three main views: the first is to understand it as a third element of responsibility, alongside responsibility capacity, intent, and negligence. The second is to understand it as a constitutive element of intent and negligence. The third is to understand the absence of expectation possibility as a reason for excluding responsibility. According to the above views and the third view, expectation possibility is an independent reason for excluding responsibility, separate from intent and negligence. That is, the lack of expectation possibility excludes responsibility but does not exclude intent and negligence. According to the second view, the absence of expectation possibility not only excludes responsibility but also excludes intent and negligence. We believe the second view is reasonable. According to the normative responsibility theory, intent and negligence can be divided into constitutive intent and negligence and responsibility-forming intent and negligence: the former are purely psychological facts, neutral and colorless; the latter are normative evaluations, including value judgments. The main content of normative evaluation is the awareness of illegality and expectation possibility. Therefore, I believe that normative evaluation in culpability includes: (1) normative evaluation of the cognitive factors in psychological facts, i.e., the issue of awareness of illegality; (2) normative evaluation of the volitional factors in psychological facts, i.e., the issue of expectation possibility; (3) the possibility of normative evaluation is based on the freedom of human will, and freedom of will is the philosophical basis of normative evaluation. Therefore, it is also necessary to discuss it together.
II. Awareness of Illegality
The issue of awareness of illegality is a product of the Enlightenment movement in the 17th and 18th centuries. The famous German criminal law scholar Feuerbach defined crime as the infringement of others' subjective rights. Just as illegality is the core of constituting a crime, the volitional determination of illegality becomes the core of culpability. From a liberalist perspective, Feuerbach consistently proposed that the awareness of pursuing illegality in intent—the way he interpreted intent as the purpose of determining illegality—is fundamentally the core of culpable intent. [1] Subsequently, awareness of illegality was adopted by the normative responsibility theory and became an essential element of responsibility. However, whether awareness of illegality is necessary for culpability remains a long-standing debate.
(a) Awareness of Illegality in Criminal Intent
Regarding whether awareness of illegality is required in criminal intent, there are four main views in criminal law theory:
First is the strict intent theory, which holds that the formation of intent must be accompanied by awareness of illegality. The rationale is that intent is a form of serious responsibility, recognizing actions made with the motive of opposing normative awareness. Without awareness of illegality, such a motive does not exist, and thus it is not considered intent responsibility. The conclusion is that although legal error (prohibition error) may be present but awareness of illegality is lacking, intent is thereby excluded. Although there is factual awareness, it is lacking due to negligence.