LESSONS
L.7 - The permissive subject
(I: GROUNDS FOR JUSTIFICATION IN GENERAL)
STRUCTURE
I. Introduction: Prohibitive, prescriptive and optional rules.
II. General considerations.
1. status objective.
2. On the disputed need for a subjective element of justification.
III. Errors in relation to the causes of justification (the so-called "putative exonerating circumstances" and the "ignorance of the factual status " that gives rise to justification).
What happened?
The fact that a person has been found dead does not mean that a homicide has been committed. It is also possible to think that the death occurred in the context of a previous aggression, so that one could speak of conduct in self-defence. When someone repels another person in order to defend himself from an aggression, we refer to self-defence. And if, in the same context, the attacked person even kills the initial aggressor, we are not talking about subject homicide, but about "subject self-defence". In these cases, we are talking about causes of justification, which are an expression of optional or permissive rules. All rule of conduct (whether prohibitive, prescriptive or optional) gives rise, when used by the judge to assess the conduct carried out, to respective types. Thus, we speak of permissive, omissive or optional types (in relation to the prohibitive, prescriptive or permissive norms, respectively). For the optional types, the more common term "causes of justification" is also used at Criminal Law .
In certain cases, the legal system allows action to be taken even if it harms or affects the interests of third parties. This occurs in cases where there is a crisis status for legal interests that is resolved in favour of the overriding interest. Determining the overriding interest is not an easy task: it is not a matter of valuing the assets at stake and choosing the one with the highest value. Nor is it a utilitarian calculation of advantages or benefits. The overriding interest depends to a large extent on which status the legal goods in question are located: thus, if these goods are located at status peacefully, any person who intrudes into the vital sphere of another causes a destabilisation and thus leads to the legal system being biased against him and in favour of the unjustly invaded. Hence the question "who started first?" at the top of these pages. Whoever starts by attacking another is, in the eyes of the legal system, of worse status than the attacked, which means that the legal system does not protect him, but leaves him in the hands of the attacked, so that in that instant it is he (or whoever helps him) who repels the destabilisation (aggression). This is precisely what happens when we speak of legitimate self-defence: whoever attacks an innocent person (understanding as such anyone who has not previously begun to attack) sees how the legal system takes the side of the unjustly attacked, who enjoys Schools to act (in protection or protection). In turn, the initial aggressor has a duty not to defend himself against the aggressor, as it is no longer a question of an unjust aggression (the so-called "duties of tolerance").
Self-defence (see an example in C.71) is not the only case of causes of justification known in our system. A state of necessity, the performance of a duty or the legitimate exercise of a right are also foreseen. See L.8.
Necessitas non habet legem (according to ACCURSIO's gloss to D. 1.10.1.1) means that in cases of necessity the law gives way and allows action to be taken. This is how causes of justification operate: as exceptions to the law in specific cases in order to overcome a status "crisis" for the legal goods or interests affected.
C.74 - Philip IV case
"At approximately 9.30 p.m. on 15 February 1998, Miguel T.M., an adult with no criminal record and a police officer, ...., was on patrol in Felipe IV Street in the capital, together with his partner, on board a police vehicle, when they observed Juan Francisco A.M., driving the vehicle enrollmentB....TF and accompanied by Alejandro H.V.V. as co-pilot, driving through a red traffic light and making a forbidden turn. At that moment and in order to be able to identify them, they activated the luminous and acoustic systems of the police vehicle and set off in pursuit, at first immediately behind, and then parallel to the car they were pursuing, while the accused's partner urged the driver to stop. In response to these requests, Juan Francisco A., at first slowed down and moved to one side, but immediately afterwards he set off again, abruptly accelerating the vehicle and driving at high speed again, resuming the pursuit through different streets of the capital. At one point the accused, who was driving the police vehicle, managed to get practically parallel to the other vehicle, and thought he saw that Alejandro H.V. was holding a sawed-off shotgun, so in order not to get in the line of fire he slowed down and moved behind him, slightly to the left, at a dead angle, in such a way that neither he nor his companion would be caught. In the belief that there was a danger to his safety, the accused then drew his service weapon through the window and with his left hand fired three shots towards the rear of the vehicle in front of him, shots which hit the tailgate, one of which went through the back seat and then the front seat occupied by Alejandro H.V., one of the projectiles penetrating his left hemithorax, with an exit wound in the left subscapular and left mamillary region, without affecting the lung. The impact of the bullet caused injuries ...".
(STS 15 January 2003; pte. Soriano Soriano; RJ 2003, 727).
AA.7
In order to establish criminal liability, it is not enough that the above elements (actus reus and mens rea) are present. It is also necessary that the so-called general defences are not present. Their effect will in all cases be the denial of the criminal responsibility of the accused.
Before listing the different types of defenses, it is important to point out that the concept of defenses in Criminal Law does not coincide exactly with that of causes of justification in continental law. Thus, within the term defenses, we find what in continental law are causes of absence of action (e.g. automatism), causes of absence of guilt (e.g. insanity), causes of justification (e.g. self defence) and causes of non-punishability (e.g. statute of limitations).
Following P. Robinson's classification (and cited by the majority doctrine), there are five classes of defenses: 1. Failure of proof defenses (in which there is no test any of the elements of the crime "beyond a reasonable doubt"); 2. Justifications (equivalent to our causes of justification); 4. Excuses (equivalent, for the most part, to the causes of exclusion of guilt) and 5. Non exculpatory defenses (related to punishability).
In AA.8, concerning causes of justification in particular, the justification defences will be explained. Some of the other defences have already been mentioned in the discussion of causes of absence of action(see AA.1). And others will be explained in later lessons (the excuses, in L.10-L.11, and the non-exculpatory defences, in AA.14).
On how defences affect criminal liability: People v. La Voie (Supreme Court of Colorado 395 P 2d. 1001) 1964. On errors in the grounds of justification: The Queen v. Dudley and Stephens (Queen's Bench Division 14). Dudley and Stephens (Queen's Bench Division 14 QBD 273) 1884.
VOCABULARY
- General defenses
- Failure of proof defenses
- Offense modification
- Justifications
- Excuses
- Non exculpatory defenses
For a start: Jescheck/Weigend, Treatise, § 31.
For further information: Molina Fernández, "El estado de necesidad como ley general (Aproximación a un sistema de causas de justificación)", RDPC (2nd period), núm. extraordinario 1 (2000), pp. 199-260.
Monograph: Baldó Lavilla, Estado de necesidad y legítima defensa. Un estudio de las "situaciones de necesidad" de las que derivan Schools y deberes de salvaguarda, Barcelona, 1995.
N.71 Justification
N.72 Errors in relation to the causes of justification.
SYNOPSIS
