LESSONS

L.9 - Guilt

(I: MEANING AND RATIONALE)

STRUCTURE

I. Historical-dogmatic approach and evolution.
II. Material basis of guilt.
III. Antijuridicity and culpability.

How could you do it? (I)

So far we have been asking whether someone has killed another (L.1-L.8). However, even if the answer is in the affirmative, it does not mean that the person who has killed another will be punished for what he has done. For this, it is also necessary to attribute the act committed to someone else at degree scrollof reproach. Returning to our original case, the question now arises as to whether the perpetrator of such a typically unlawful act is also guilty. In other words, it is a question of reproach for his conduct. In other words, the (typically unlawful) act is imputed to the agent at degree scrollof demerit, i.e. as culpable. This is culpability, which is the subject of L.9-L.11.

Like all the issues we have been dealing with, culpability does not operate only in the theory of crime. Of course, in our everyday relationships we can - and do - regard what others do, or what we ourselves do, as reprehensible. This is what we mean when we reproach someone for his or her conduct. This occurs when the agent has acted against the law (or another normative system: be it morality, spelling rules or the "good Education"). To the one who acts in accordance with the law (or in accordance with what is established in any other normative system: be it morality, spelling rules or "good Education") we do not direct a judgement of reproach, because he has done what was due, what was expected of him. And whoever does more than what the law (or what is established in another normative system: be it morality, spelling rules or the "good Education") requires a judgement, not of reproach, but of praise, based not on guilt but on merit: we then speak of meritorious, heroic or, with terminologytechnique, "supererogatory" conduct. But let us return to the theory of crime.

Guilt as a judgement of reproach presupposes a distinction core topic, not only for Criminal Law. It is one thing to determine whether what happened is an act, which requires determining that the conduct, objectively and subjectively, fulfils a subject(whether it is an act of commission, omission or a cause of justification). And it is quite another thing to attribute this act to the agent as guilty, that is, to reproach him for it. Whether the theory of crime continues to be effective in determining a person's criminal responsibility depends on maintaining its analytical capacity, i.e. that it continues to be a means of distinguishing precisely what is different.

The judgement of reproach directed at the agent for his act is based on the consideration of the subject, in the specific case, as free. Difficulties often arise in understanding freedom, because it is a polysemic term. Freedom is affirmed of persons in at least two ways. We affirm that someone acts with freedom when he knows that he acts, but this does not always mean that he also knows that his act is licit (or illicit), good (or bad), right (or wrong)... With the categories of the theory of crime, it could be said - with little precision - that someone who acts with malice is free. But the full freedom we are talking about goes beyond malice. Indeed, knowing the risk of one's own conduct does not imply that one also knows that this conduct is known to be licit or illicit. In order to affirm full freedom, it is necessary to establish not only that the subject knows what he is doing (which allows us to affirm that he is acting with volition), but also that he knows what he is doing (which allows us to affirm that he is acting voluntarily). Volition and voluntariness are thus two different ways of referring to freedom. The judgement of reproach contained in guilt presupposes (implies) that the act has been done with volition (that there is an act) and expresses that the act has been carried out voluntarily (that the agent is guilty).

A person is guilty when he or she can be held responsible for his or her actions. This takes place when the agent acts freely (as a voluntary act). This requires, firstly, that the agent knows or understands the unlawfulness (the rule) of his act; and, secondly, that he is able to act in accordance with this knowledgeor understanding. The following cannot therefore be considered guilty: anyone who is unable to access the rules of conduct, that is, anyone who is unable to know the unlawfulness of what he is doing; and anyone who, even though he knows, is unable to modify his action by incorporating the fact that it is prohibited, prescribed or not permitted. Let us see how it is established in C.91.

Classical doctrine used two categories to impute liability: imputatio facti and imputatio iuris. The first (together with the so-called applicatio legis ad factum) corresponds to what has been discussed so far in the theory of crime. Then, the fact assessed as unlawful is attributed to an agent at degree scrollof reproach: this is the imputatio iuris, the imputation of an unlawful fact as guilty (or of a fact that goes beyond what is foreseen in the law at degree scrollof merit). Since the end of the 19th century, the contents of imputatio iuris have been redirected to what we know today as culpability.