Nature of the Justification System in Criminal Law PDF

# NATURALEZA DEL SISTEMA DE JUSTIFICACIÓN EN DERECHO PENAL ## Fernando Molina Fernández Profesor Titular de Derecho penal. Universidad Autónoma de Madrid ## I. Introducción Like any of the major theoretical blocs which underpin the concept of *delito*, the theory of justifications today still ha...

# NATURALEZA DEL SISTEMA DE JUSTIFICACIÓN EN DERECHO PENAL ## Fernando Molina Fernández Profesor Titular de Derecho penal. Universidad Autónoma de Madrid ## I. Introducción Like any of the major theoretical blocs which underpin the concept of *delito*, the theory of justifications today still has some questions pending. Putting aside partial problems which may affect the different justifications, there are three questions which could be considered fundamental, as they affect the entire system of justifications: two of these are external to the system, meaning they affect the relationship between the system of justifications as a whole and the rest of the elements of the offense (*delito*) - particularly the elements which precede it and follow it in the theoretical definition: *tipicidad* and *culpabilidad*; the third is internal, relating to the relationship between different justifications, ultimately leading to the question of whether it is possible and scientifically fruitful to conceive of a system of justifications. The attention these three major issues have received from the doctrine is not equal. The first two, due to their importance for constructing an analytical theory of the offense, have been the focus of attention since the very beginnings of modern doctrinal discussion. The third, the relationship between justifications, has received less attention, perhaps because it carries less theoretical weight in the core discussion on the concept of crimes, but it is of great practical importance. This paper is devoted to it. The prevailing view in the doctrine, and widely extended in legal theory, on the relationship between justifications has not changed greatly over time. According to this point of view, after establishing the different types of justifications, criminal codes would gather a series of justifications which are relatively independent of one another, all operating basically in parallel: each would have its own requirements and scope of application, without interference from the others. All of this makes it difficult, if not impossible, to speak of a true system of justifications. Roxin expresses this common view: >"Until now no fruitful systematization of justifications has been achieved. And the truth is that it cannot be achieved in a closed and definitive way either, as the points of view relating to the exclusion of harm from a fact despite fitting the definition are so varied, and the number of justification grounds from all parts of the legal order are so great and are subject to...- changing needs, that some unifying principles may be stated but, at any rate, they can only have a limited coverage as regards the content." This vision is likely helped by two factors. Firstly, at least in a superficial examination, the appearance of justifications in legal systems does not appear to respond to common criteria. More specific justifications are disseminated throughout the legal order, to resolve very different types of conflicts, and the more general ones, as reflected in criminal codes, appear to emerge throughout history out of order and without a common principle. Legitimate defense, which is almost undoubtedly the most universal justification, appears to have its own, distinct application area where other justifications do not interfere. The state of necessity appears later, in different phases, and is always subject to debate about its nature, extent and even opportunity. Meeting a duty or exercising rights is not expressly codified by many legal systems, and there has always been doubt whether this is justification or merely a formula without substance which should not be included in the law. Finally, other justifications such as consent or due obedience, either do not have a general scope or are disputed in their own nature. Secondly, the apparent lack of practical reasons. The advantages of having a well-structured system are not as visible in this field as in others. The effect of any justification is identical: the act becomes lawful and responsibility for the harm that might occur is negated. That this effect stems from one cause or from another, or that several coincide, seems irrelevant on the outset. These reasons and others have given rise to a lesser development of systematic thinking in justification, in contrast to what has occurred, for example, in *tipicidad*. It is true that examining justifications has traditionally rested in the general part of criminal law, but at the same time, the study has focused more on the analysis of the elements specific to each justification than on the common elements, more on delimiting the particular scope of application of each circumstance than on addressing problems related to their concurrence, more on identifying what problems its concurrency might pose. However, there are good reasons, both theoretical and practical, which suggest exploring the possibility of a different approach which could serve as a basis for a general system of justification. The question is not new, as it has been raised in the scientific debate for some time by two avenues: firstly through the lens of the debate on whether it is possible to find some common principles for all justifications - and while many authors, following the line seen in Roxin, are skeptical about the possibility², some have shown - and skeptics have shown this significantly too - that some basic concepts have been proposed³, secondly, through the discussion about the existence of relationships of specialization between some justifications, particularly between the state of necessity and other specific justifications which concretize it, which translates to acknowledging an overriding effect of those on that [justification] * * * ## II. Theoretical Presuppositions of a System of Justification in Criminal Law The configuration by the legislator of a list of justifications is part of the general task of concretizing *delito* in norms. The *type of injustice* in a restricted sense is joined by *justification* to form a total *type of injustice*, defining prohibited conduct according to its effect on legal goods. The legislator’s task throughout the process must be guided by the same two principles, harmfulness and legal certainty, related to the content of criminal norms and the way they must be drafted to guarantee legal certainty, respectively. These principles, however, have disproportionate weight when grounding or excluding responsibility. The principle of harmfulness requires no special justification, among other things, because it is not exclusive to criminal law but to the entire legal system (and indeed any regulatory system). Applied to defining *delito*, it means that legal provisions defining *delito* and justifications must delimit and prohibit all conduct and only those acts which are sufficiently harmful from the perspective of a criminal law guided by the principle of minimal intervention. The principle of certainty, as understood in our legal system, is directly tied to the principle of legality. The principle of legality is central to the way we consider *delito* in our culture and requires no further elaboration. Throughout the legal system, but with particular intensity in criminal law, legal provisions must provide clarity and predictability for those subject to legal duties, reducing uncertainty about the extent of what is prohibited, and closing the door to arbitrariness in applying legal consequences. While, theoretically, both principles should not interfere with each other, in a system with a necessarily limited number of prescriptions, they do conflict. The only way to cover many factual hypotheses with few rules is to increase their level of abstraction, and conversely, the only way to guarantee legal certainty is to increase the level of specificity. <start_of_image> Like any conflict of interests, the solution lies in finding a balance which depends on two factors: the complexity of the material to be regulated and, mainly, the relative importance of both principles. These two factors can yield different results depending on the institution to which they are applied. This is precisely what happens in the two aspects of defining conduct that is objectively harm-causing, in grounding and in excluding *delito*. At the level of *tipicidad*, the principle of certainty clearly prevails, at least in criminal law. It is generally recognized that *delito* is, above all, a technical instrument which allows for substantiating guarantees associated with the principle of legality. On top of that, the catalog of typical behaviors is limited (the fragmented character of criminal law) - so nothing prevents criminal law from having a level of specificity sufficient to meet the requirements of the principle of certainty. If we arrange legal provisions within a legal system in a pyramid with the most abstract rules at the top and the most concrete at the bottom, *delito* should be at the bottom - which, in fact, is the case for the most part. Open-ended or vague offenses, those with general clauses, have always been suspicious, precisely because they do not provide sufficient legal certainty. And for the same reason, analogy - which is nothing other than a fairly reasonable rule of ‘second level’ that, at the expense of certainty, opens up the system to avoid gaps - is completely off-limits in this area. In *tipicidad*, the point of balance between certainty and comprehensiveness leans heavily toward certainty. This creates a high degree of legal certainty (a precise limit to *ius puniendi*) but also makes criminal law more vulnerable to errors in the process of defining types and, at the same time, diminishes its agility to adapt to new situations. In other words, criminal law is less equipped to deal with legal gaps. Conduct that is objectively harmful, but has not been expressly provided for by the legislator due to gaps or because it is new, cannot be punished until a legal reform is made, and only for future behaviors. Any application of the law which goes beyond the maximum meaning of legal expressions (that is, anything that goes beyond interpretation, entering the realm of analogy) - is prohibited for the same reason that open-ended offenses are illegal: it is unconstitutional, as a consequence of violating the principle of legality. This real loss of efficiency is, however, a price criminal law is happy to pay for legal certainty. At the level of justification, things are quite different. Although certainty is a value in any segment of the legal order, and in justification too, its importance depends directly on whether it acts as a limit to *ius puniendi* or in the opposite direction. All the good reasons found in the realm of defining harm as grounds for prioritizing legal certainty, which are condensed in the strict application of the principle of legality, cease to make sense in justification - thus, the principle that only conduct which presents objective harmfulness should be punishable is restored to its central role in the legislative process. The balance between certainty and harmfulness shifts from the balance seen in *tipicidad*. If, invoking the principle of legality, it is easy to justify that a harmful act which is not defined by law should be unpunishable, then it is irrational to try and defend that an act which is typical, but would be objectively harmless or even positively evaluated according to the values of the law itself, should be punished because no grounds for justification listed in the law contemplate it. This conclusion is an essential part of how to understand the structure of a system of justifications. However, before moving on to this issue - the true central point in the paper - we should mention another important difference between grounding and excluding harmfulness: the complexity of what is regulated, which is key to the legislative process. * * * ## III. Relationships between Grounds for Justification In a system of justifications structured according to the pyramidal scheme as outlined above, each ground fulfils a specific function and, at the same time, is coordinated with the others, creating a complete and coherent system to resolve legal conflicts. Specific rules, located at the base of the system, resolve singular conflicts which have two characteristics: firstly, they are relatively frequent, and secondly, their solution is difficult, either because of the complexity and importance of competing interests or because of conflicting social views on their value. In such cases, an express decision by the legislator, marking the point of balance between the interests of the fetus and the mother in abortion, between the needs of general security and individual interests in restricting the action of public authorities, which involves circumscribing fundamental rights - privacy, freedom, etc., - are examples of situations which call for specific rules, and all legal systems include these. To the extent that conflicts can be grouped into typical situations, general rules can be drafted for them. These general rules do not apply to every possible conflict (they are not at the peak of the system), but rather to all those which fall within its context. Consent, or, at a higher level of generality, legitimate defense, have these characteristics. The general rule, located at the top of the system, performs several essential functions which make it irreplaceable (which can explain its gradual incorporation to different legal orders). Its main function is to act as a rule which closes off justification, meaning, in the terms described earlier, to fulfill the material principle of harmfulness: with this general provision, a situation will never arise where, lacking a specific justification rule, a typical act which, under the circumstances, constitutes a lesser harm, measured according to the standard of the rights protected, would be prohibited. But it also performs an intrasystematic function: it does not only fill gaps left by specific rules but also solves any potential conflicts between them. Finally, it provides flexibility to the system of justifications to adapt to social change. While specific rules offer a solution tied to a time and place, the general rule, by its very nature, does not lose its validity. A change in the assessment of competing interests or the emergence of new factors previously unknown can make a specific justification obsolete, and in this case, the general rule can be invoked exceptionally. However, out respect for the decisions of the legislator, this possibility should be used very limitedly and always with proper justification. In terms of the relationships between justifications, their placement in a pyramidal system reciprocally conditions their scope of application, establishing both horizontal and vertical relationships between them. Here, I will only briefly consider the latter. The congruence of the system of justifications stems, above all, from the existence of vertical effects, both ascending and descending, between justifications of the same trunk. To identify the ascending effects, it is helpful to go back to the function that the different justifications perform in justification. The rule at the top, with its extreme generality, is its main strength, but at the same time, its greatest weakness. It allows for resolving any imaginable conflict, but at the same time, it offers little guidance for addressing problematic cases, thus generating insecurity. The lower rules, the more specific they are, the more certain they are, and at the same time, the more closely they relate to singular conflicts. Their relationship, then, is characteristic of specialization. But in this case, unlike in the case of *concurso de tipos*, special rules do not carve out a portion of the general rule to attribute different legal consequences, but aim to specify the scope of the general, making clear that for that particular conflict, the general rule must be formulated as the special rule provides. So, the special rules validate an “overriding effect of the specific rule over the general”; that is, the impossibility of using a general provision to resolve a conflict contemplated by a specific provision, respecting the exclusive authority of the legislator to decide on conflicts as he or she sees fit. With this, and this is a crucial practical aspect of the entire structure, an adequate answer can be provided to those situations where an act is harmful but does not meet the requirements of the special justification, and even if it does, it is still attempted to be justified using, improperly, the general rule. But the upward effect does not end there. The solution provided by the special rule for a singular conflict must serve as a guide when interpreting the general rule when it applies to similar cases. In the special rule, the legislator carries out a detailed assessment of the complex conflict, taking everything into account, and this assessment must be taken into account by the judge for similar cases. Bringing these two processes together yields the advantages of both systems: accessing general provisions and using analogy. As for the descending effects, the higher provisions are based on general principles which, in turn, should define limitations and interpretive criteria for the more specific justifications. * * * ## IV. Is There a System Behind the Current Regulation of Justifications? The historical emergence of justifications in criminal laws does not reflect, obviously, a conscious adoption by the legislator of a scheme such as the one developed. Nevertheless, different legal systems have naturally come closer to it, making this very significant. The presence of special justifications, which provide specific answers to singular conflicts, is a universal constant. In reality, a legal system is, above all, a set of rules which allows for coexistence by seeking balance between competing interests. Asserting rights or exercising duties, when this involves harming or endangering legally-protected goods, is justified conduct. Our law is not unique in this regard: it contains specific justifications enshrined both in criminal law and outside of it. As for general justifications, which are usually reflected, directly, in criminal law, the historical evolution has led, as we have seen, to the convergence of different legal systems in selecting them. One question is: what do these provisions have to make them universal? In my opinion, the rationale for this agreement lies in the logic of a justification system as described, which seeks a balance between *lesividad* and certainty. Two of the general grounds - fulfilling a duty/exercising a right and the state of necessity – express basic principles of rationality. In other words, it is possible to conceive of a legal system which does not explicitly include them, and history and comparative law show that this has happened and still does happen, but it is unimaginable to have a system which does not include them. * * * ## V. Conclusions It is easy to see that, for the defense of a right or the exercise of a duty, or the state of necessity, to be prohibited would be contradictory in terms of logic or pragmatics. Legitimate defense is a unique case, but also clear-cut in applying a rational rule behind the state of necessity. * * * ### (a) No legal system can, without contradiction, prohibit and also make someone obligated to perform an activity, so the provision that states that the person performing a legal duty or exercising a right is free from punishment simply reflects a basic logical concept: one does not behave against the law when behaving in accordance with it. This concept is so clear-cut that many legal systems do not even explicitly mention it, as in Germany, and those that do have voices calling for it to be removed. While this is a rule empty of justificatory content (any legitimate defense is based on exercising a right or fulfilling a legal duty), it assumes full meaning when considered as a rule for incorporating into criminal law specific instances of justification enshrined in the legal system. It serves as a universal rule for justifying by default. ### (b) The state of necessity, for its part, has been gradually acquiring the function of the closing clause to the system of grounds for justification. In situations where protecting legal interests can only be done by harming other interests, the legal order inclines toward those interests which are more important based on its own value system. This is why the state of necessity is not only a ground for criminal law justification, nor is it merely a ground for general justification, even if it is both, but rather a legal expression of a basic principle of rationality. In the words of Nino, “If there is no dispute about what constitutes harm and about the relative importance of the different harms involved, then it would be irrational to try and protect against a specific harm using a measure that would imply greater harm.” * * * ## VI. References 1. "El Código penal concordado ..." 2. "Muy claro en ..." 3. "Los límites of ..." 4. "Sobre ello, ..." 5. "El Model Penal ..." 6. "Y, como han ..." 7. "Un análisis de ..." 8. “En este sentido, ..." 9. “Sobre ello, ..." 10. "Roxın ha ..." * * *