except under an inflated felony-" death" (not even felony"murder ") concept. Obviously, they are guilty of attempted

murder.

SUMMARY

I hope to have shown that it is no longer necessary to operate in criminal law with causation either in an intuitive fashion, under the so-called common sense approach, or to subject each causal inquiry to an evaluation whether or not a particular causal imputation would comport with fair play, democratic ideals, or any other such standard. Causation is a juridical concept, the structure of which could here be developed on the basis of comparative study.

The principle of causation comes into play most conspicuously in offenses which require a specific harm in the nature of a physically observable detriment, as in homicide, arson and the like. But it is also applicable to offenses in which seemingly conduct alone constitutes a prohibited harm. Under strict application of the legality principle, however, it has repeatedly been held that even in these offenses liability does not attach unless the conduct is productive of that actual harm for the prevention of which the legislature had passed the statute.58

For any conduct to qualify as a juridical cause in the production of criminal harm, it is necessary that it fulfil two basic requirements, (1) its nature as a causa sine qua non, (2) the teleological element.

Ad (1). (a) It is necessary that the conduct be a conditio sine qua non, i.e., an element which cannot be imagined absent without failure of the result (harm). There are two ways of expressing the qua non formula:

sine

(i) conduct is causal if, without it, and considering all remaining actually present circumstances, the concrete result would not have occurred;

(ii) of several causes which can be imagined absent alternatively but not cumulatively without failure of the result, each one is a conditio sine qua non of the result.

Formula (ii) is more inclusive than formula (i). I do not think that it is possible to make a preference in utilitarian (deterrent) terms as between the two formulas. While formula (ii) caters more 58 e.g., desecration of the American flag, People v. von Rosen, 147 N.E. 2d 327 (Ill. 1958); uttering obscenities in public, State v. Bruns, 143 N.J.L. 398; 48 A. 2d 571 (1946); cf. obstructing interstate commerce, United States v. Shirey, 79 S.Ct. 746 (1959).

to retributism, it also caters more to resocialization in subjecting to detention a larger number of potentially dangerous persons. Formula (i) recommends itself more to a democratic society willing to take an occasionally uncompensated (by punishment) loss for the sake of greater protection of human dignity and liberty. In any event, a policy decision will have to be made only on this level, and it is a general policy decision which, once made, will obviate the necessity of making individual policy decisions in each and every separate causal inquiry.

(b) The quality of being a cause implies effectiveness. Conduct and causal chains which are arrested, neutralized, set at naught, cannot qualify as causal. Since effectiveness inheres in the concept of a cause, it is not necessary, logically speaking, to constantly reaffirm the requirement of effectiveness as a separate causation element. The Latin noun conditio does not sufficiently express the effectiveness quality of the legally relevant cause. It is proposed, therefore, to describe the legally relevant cause as the causa sine qua non.s

59

It should be observed that the causa sine qua non is not identical with a mechanical or physical cause. It may indeed be a strictly physical-mechanical causal chain which qualifies as a causa sine qua non, but it may also be a psychological or psycho-physical nexus.

Ad (2). Conduct is a phenomenon which man has wrested from the blind causal occurrences of nature. It is purposed and goal-directed. This means that the human psyche maintains a teleological nexus to the outside world. The norm of law tells us of what intensity this teleological nexus with the legally relevant product of conduct, namely harm, must be. In crimes of intention the nexus must be that of purpose, intention or full expectation, wish, awareness, etc., that the effect will be produced. In crimes of recklessness a gambler's consciousness or awareness of great risk of the consequences will suffice. In crimes of negligence even less intensity is required, though I made no effort to solve the problem of negligent criminality in this paper.

Since mortal beings cannot predict the precise concrete causal trains of their actions, it is not necessary that the harm was brought about in precisely the manner envisaged. Subject to the general principles of criminal law, and in accord with the causation

59 State v. Baller, 26 W.Va. 90; 53 Am.Rep. 66 (1885).

formula here advocated, deviations from the envisaged causal train are immaterial.

It must be remembered that causation, as one principle of the criminal law, like the principles of conduct and harm, can function only within the totality of the principles and doctrines of the criminal law. It is incapable of isolated and detached existence. Thus, merely by way of example, the doctrines of accessoryship, the principle of legality and the principle of mens rea constitute a check on causation, since they all come into play before causal imputability can lead to criminal liability.

The check which mens rea constitutes on criminal liability is of particular significance. While the forms of mens rea, broadly speaking intention and recklessness, are duplicated as forms of the mental process, thus as ingredients of the actus reus, their function as mens rea forms is unimpeded. They must remain as yardsticks for measuring the required intensity of the awareness of wrongfulness, and awareness of wrongfulness is the very essence or substance of mens rea and always has been.

In fine. The concept of causation as here developed is by no means a novel and original one. It is based on the scholarly achievements of those who have previously worked thereon-our courts and a long line of scholars on both sides of the Atlantic, to all of whom I am indebted, Professors Hall, Hart, Honoré, Ryu, Wechsler, Welzel, Williams and many others, all of whose proposals I cannot accept in toto, but who have significantly contributed to the causation concept as it here emerged.

The position here advocated is not positive law anywhere,. although I respectfully submit, it is the only position consonant with the general principles of criminal law which evidence the positive law of our country. Thus, the causation concept here advocated commends itself not only by its greater certainty, but also by its consonance with the age-old standards of Anglo-American criminal law, the large measure of support it draws from enlightened criminological scholarly opinion both here and abroad, and the soundness in terms of psychological theory which, I submit, it enjoys.**

There is no occasion in this legal-technical paper to deal with the fundamentals of psychological theory. In lieu of many, see Gault and Howard, An Outline of General Psychology, Chap. 12 (2nd ed., 1934), on the nature of voluntary conduct and the circumstances of its functioning.

Senator HRUSKA. Nevertheless, we want you to go ahead and make such comment at this time, within the time limitation, as you choose.

STATEMENT OF PROF. GERHARD MUELLER, INSTITUTE OF COMPARATIVE CRIMINAL LAW, NEW YORK UNIVERSITY

Mr. MUELLER. Thank you, Senator Hruska. May I say that once again it is an honor and a pleasure to appear before you and the committee, as we have done in years past, aiding the Congress in legislation pertaining to criminal matters.

Senator Hruska, we answered the committee's questionnaire composed of 20, and if you count tightly, 43 questions. It was not an easy task. We have tried to give you an indication of the position of this proposed piece of legislation within world development.

In other words, we have tried to perform the function in a civilian matter which military counterintelligence is performing in the military field. We have tried to tell you what other nations have that may be better than what we have to offer.

Senator HRUSKA. Now, Professor if you will yield, there will be placed in the record the text of the questionnaire which was sent to professors of comparative law under date of February 3, 1972. By having that text there, the reference can be made back and forth from your respective statements to the questionnaire.

(See p. 1920)

Mr. MUELLER. Very good. Thank you. That would be most appropriate. We have repeated each question at the beginning of our an

swer.

Senator Hruska, basically this code is a vast improvement on American codification efforts over previous codes. I am referring particularly to the Model Penal Code. Still, by world standards, the code does not quite measure up to the standard achieved in some of the European countries. I will point to some specifics.

But, basically, Europeans always have regarded Americans as fabulous, pragmatic problem solvers, but as pretty lousy when it comes to making general code statements, which are meant to govern human beings for the future, or at least for a predictable future.

Since we have specific answers to all of the questions, I will restrict myself to five points, and I thought I would start out with one point which I know, Senator Hruska, is of interest to you because you and I, both, contributed to the Nebraska Law Review on that issue, and that is the issue of the very aims and purposes of criminal law, particularly in reference to sentences.

May I call your attention to section 102 of the draft, which states the legislator's ideas on the purposes to be served thereby. In there we have a specific reference to the prescription of penalties, which are meant to have different purposes, such as rehabilitation of individual offenders. Deterrent is mentioned therein as "the prescription of excessive punishment," and so on. I would like to raise the question of whether or not this preamble-type statement is meant to be only a pious statement, or whether it is supposed to have legislative effect, in terms of guiding the judiciary.

And here I think I have some examples in continental legislation where it has been the effort of the draftsmen or the legislators to state these code purposes in connection with the obligation of the judiciary to impose that right kind of sentence, and thereby to prevent the further commission of crime.

Unhappily, the two sentencing chapters in this code do not give the judiciary much guidance in terms of the purposes and in terms of the input data that are supposed to go into sentences.

I would like to call to the committee's attention a statement from section 13 of the Penal Code of the German Federal Republic. This section which was just passed, states the purposes of the code in terms of the obligation of the judiciary to impose sentences, and it

says:

The culpability of the perpetrator is the basis of the composition of the punishment. In particular, the potential effects of the punishment upon the life of the perpetrator within society must be considered.

The section goes on by giving the judicial branch, the judiciary, specific guidance when it comes to sentencing. I would suggest, on the basis of continental experience, that you could do better in your own code if the general purposes were phrased in terms of an obligation for the judiciary to select the right kind of sentence. This may require the insertion of a further provision, somehwere further back in the sentencing chapters, which perhaps could be patterned after section 13 of the new German Penal Code which I just read.

I might add that the right measure and type of sentencing is of immense significance. I am at the moment director of the criminal justice and corrections education program of the National College of State Trial Judges where I am constantly in a quandary as to how to advise the trial judiciary of the United States when it comes to matters of sentencing. Legislative guidance is badly needed, and I think we have enough research experience to give our judiciary the guidance to which they are entitled.

I am now coming to a most difficult part of the draft, Senator. I am referring to sections 302 and 304, which are the basic culpability provisions. My answer actually arises out of questions 3 and 10 of the committee's list of questions, which I found it necessary to combine.

The question posed to me was whether or not the terms of culpability contained in section 302 are adequate in terms of world standards and experience abroad. The answer is yes. All of the world knows these forms of culpability, intentionally, knowingly, recklessly, and to some extent negligently. But, we are disturbed by finding subsection 5 in section 302. Subsection 5 would seem to be inconsistent with the entire experience of continental criminal law, and I might add of our own criminal law.

It seems also to be inconsistent with the broad policy statement on section 304. I mean the following: It has been basic, as all of us lawyers know, that at common law the awareness of wrongdoing is part of culpability. In fact, the mere intent to produce the result cannot even be called culpability. It is at best a bare form of culpability. It is of the essence of criminal liability at common law that the defendant has an awareness of wrongdoing when he commits a