LESSONS

L.2 - The subject fraudulent commission 

(I: Objective imputation)

STRUCTURE

I. Meaning of the so-called "objective imputation":
1.The judgement of human conduct as typical.
2.Types of mere activity and types of result.
Causality and "objective imputation".
II.The modern doctrine of "objective imputation". Criteria and rules of objective imputation of results.

What have you done (I)

A person lying helplessly on the ground, together with the perception of the bang and the fracture of the window, immediately raises another question:

What have you done? That is, if what has happened is not a mere process of nature, but an action, we ask ourselves what class behaviour has been performed. Almost without realising it, we come to evaluate the conduct in some way: loaded with meaning as a homicide.

The distinction between "explaining" and "understanding", corresponding to the so-called "empirical" and " evaluation" judgements, respectively, has been used for a long time. Any of us can look out of the window and say: "it is raining", "it is sunny", "it is snowing"...; but we can also say: "I don't like it raining", "it is a beautiful day". In the latter two, a value judgement is made, an understanding of the day as bad or good. In the first three, you simply explain what you see. In our initial case, I can say: "that person has a dagger stuck in his chest", "the gradual loss of 1,500 ml of blood has caused a cardiac-respiratory collapse", "a heavy body is attracted towards the centre of the Earth...". These are statements made by scientists (doctors, physicists, or simply the spectator), who describe or explain. But they do not understand.

When freedom enters the picture, then we understand reality. Then a factor comes into play, freedom, which escapes mere explanation. And only then, only if I understand, can I assess reality. Thus, I will say: "someone has killed him".

The assertions of law require empirical judgements: it is necessary to know whether someone has died, whether there were poisonous substances in the body, whether there was a cardiac-respiratory collapse... Such judgements explain that a person has died, but not that someone has killed him or her.

In order to say that someone has killed someone else, the conduct in question must be confronted with a criminal rule (the relevant article of the penal code). If we conclude in the affirmative, this conduct is objectively typical, to which we must also add whether the same conduct is also subjectively typical(L.3). It is a question, in final, of judging (assessing) whether or not the conduct in question belongs to the type of conduct that the legislator intended to prevent by means of this rule. It is the evaluative criteria that are suitable for answering the question of the meaning of the conduct.

However, for a certain period of time, criminal doctrine (naturalistic positivism) was dominated by the pretension of providing an explanation of human conduct based on mere empirical causality(C.25). This is an inadequate means for the intended purpose: to understand human conduct. Nowadays, thanks to the doctrine of "objective imputation", the idea has become widespread that it must be evaluative criteria that provide an answer to the question of the meaning of conduct. Despite this employment of evaluative criteria, it is still common to see resource to empirical causality as a prior step for the imputation of the conduct. This is acceptable if we understand that this requirement of causality cannot replace those criteria, which are the ideal means of understanding human conduct.

These evaluative criteria can be summarised in the following statement: a conduct is typical in the sense of goal when it displays a relevant risk within the meaning of the subject. In other words: that it deploys a sufficiently relevant risk from the point of view of the subject in question (mere activity and attempt types), and furthermore that this risk is realised on the result (in types of result). Let's look at it in C.21.

On the origin of the theory of objective imputation: this doctrine comes from Civil Law (Larenz, 1927), from where authors such as Honig (1930) apply it to Criminal Law. Years later it was reworked by other authors (Roxin, 1970). It is now a commonly accepted doctrine.