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that the criminal law and morality largely coincide. Nor will he know of the obligation in any real sense simply because it appears in the Penal Code. Few citizens, even lawyers, have carefully read the Code. Unless the provision has been forcefully called to his attention in some way, any punishment inflicted upon him will be punishment for an act or omission which he did not know to be wrong and, realistically speaking, which he had no way of sensing might be wrong. This consideration may explain why, although "ignorance of the law is no defense” under Article 78 of the Penal Code, there are provisions in that article and Article 79(1) (a) for liberal reduction and even limination of sentence in cases of good faith ignorance or mistake. In the case of technical or regulatory offences, the principle of legality may not be protection enough.
Another appropriate reaction to a situation of this kind might be to prefer a relatively narrow meaning for the offence in question. Where a new offence essentially unrelated to previous criminal regulation has been created by the legislature, not only is the citizen unlikely to be aware of the offence, but the legislature, also, is unlikely to have considered as carefully as it otherwise might the extent it wishes the new regulation to have. Where the statute clearly applies to a given factual situation, oi course one must assume it was meant to apply. But there is less reason to assume that the legislature meant the statute to apply in any uncertain cases, since the moral judgment made is a new one, and therefore may not have been fully explored. The suggestion that a new rule be narrowly construed is particularly appropriate for statutes touching on conduct previously accepted as legitimate, because of the considerations mentioned above in connection with the discussion of statutory vagueness. That is, legislatures as well as courts have a responsibility to be definite. This responsibility is greatest where enactments may threaten or inhibit legitimate or protected activities. By giving such a statute a narrow construction, the court at the same time assumes that the legislature has obeyed its responsibility, and acts to enforce that responsibility in case it has not.
D. Community Moral Standards as a Supplement to Statutory Warnings 35 In the case of serious crimes, sometimes described as “infamous" or "bad in themselves," one might expect the situation to be exactly opposite from the birth registration case. Here, it could be argued that no formal warning is really necessary to apprise the citizen that his act will be subject to penalties. Regarding these crimes, most citizens-certainly the great majority of those who could be deterred by a written rule—will know that they are prohibited not because they are included in the written law, but because they are "wrong," "evil,” or “immoral” according to a shared set of moral precepts. This suggests that it is the bounds of the moral precepts, rather than the bounds of the written law, which are the more important to be observed. Accordingly, some jurists have suggested that interpretation can be very free when the law in issue is one which refers to shared morals of this sort.
A number of cautions have to be observed regarding this statement, however; it can be seen that all of these relate back to the political functions of the principle of legality in establishing and protecting relationships between courts, legislatures and the citizen. First, there may be cases where the legislature has consciously decided not to punish as criminal certain acts which many regard as immoral. Obviously, any such decision must be respected; the legislature is the primary policy-maker here. Thus, fornication and prostitution are not, generally speaking, crimes under the Code's provisions dealing with sexual relations. While there might be no serious danger of unfairness to the citizen if courts "interpreted" the law to determine that such acts were crimes, any such "interpretation" would give serious offence to the legislative decision that they should not be punished as crimes. Second, all Ethiopian citizens may not share the same set of moral standards, coming as they do from so many diverse backgrounds. Parliament, in recognition of this, seems to have been particularly careful to spell out a number of offences which might not be recog. nized as such by various of Ethiopia's citizens. Article 524, discussed above, seems to be a good example of such a provision. Ethiopian courts, in turn,
35 Franklin, work cited above at note 20.
should recognize this factor by relying on statutory language to a greater degree than some of their European counterparts might now feel it necessary to do. Finally, it may be noted that considerations of “immorality" tend at the same time to founder and to work their gravest damage in those cases describable as “polititcal crimes.” Here the danger of inhibiting valuable activity through imprecise wording of statutes is great. The threat of free interpretation in this area is equally great, particularly when one considers how ephemeral the “morality" of political acts is likely to be. Here, then, there is also a specific reason to restrain the judge's hand in interpretation, just as there is to restrain the legislature's hand in drafting.
It is possible to rephrase the discussion above into a series of questions which the interpreter might ask himself when facing the task of understanding any statutory provision :
What could the words of this statute mean? That is, what choices does the statutory language leave open?
What job was this statute meant to do? How does it fit into the overall scheme? How might its function be different from the apparent functions of other provisions of the scheme?
How is this statute likely to be understood by the persons to whom it is directed? Will it be an entirely new standard of conduct for them, or something they more or less expect because of internal moral standards?
What are the practical effects of applying the statue to this case? Does the degree of severity in punishment seem to be about what one would expect an Ethiopian legislature to impose for this act? Will punishing this act imperil those who perform acts the legislature probably did not wish to forbid? Will it imperil acts the legislature is constitutionally forbidden to forbid? Does applying the statute to this case require applying the statute to another case, where its hypothetical purpose is not fulfilled ?
Can the decision to apply or not to apply the statute to a particular case be rationally explained ? Does it make sense in terms of its language, apparent purposes, and application or non-application to other cases?
The principle of legality requires that if the judge is deciding a case in favour of conviction, he must be able to conclude, “The language of the statute could mean this.” The constitutional subordination of the judge to the legislature in statutory matters according to the separation of powers doctrine requires that in every case, civil as well as criminal, he must be able to conclude, “The language of the statutes does not require me to reach another conclusion." These are the only constitutional limitations on his interpretive power, on his freedom of choice. But a sense of his subordination to the legislature and of the policies represented by the principle of legality will make an interpreter anxious to assure that his interpretation satisfies at least some of the following criteria :
Consistency with ascertainable statutory purposes ;
will be subject to the provision; A meaning which does not threaten legitimate or protected acts; Distinctions which can be explained in terms of believable hypotheses of
legislative policy. It should not be so surprising that the concrete limitations on judicial choice are so few. The so-called rules of interpretation are only verbal expressions, slogans which may represent useful policy but often overstate it. Choices exist, and always will exist, for judges to make. It is more honest to accept this fact and attempt to state a spirit or series of goals which might motivate choice than to attempt to conceal the fact of choice behind a camouflage of "rules.” The major limitation will inevitably be found in the attitude which the judgeand the legislators-maintain towards their task. The principal role of the principle of legality is to suggest an appropriate attitude for both legislator and judge in the area of criminal law. It “can do no more than implement the attainment of the maximum possible certainty resulting from the operation of specific rules in a social milieu. It means no less." 36
* Hall, work cited above at note 17, p. 47.
RIO PIEDRAS, P.R.,
March 15, 1972. Hon. John L. MCCLELLAN, Chairman, Subcommittee on Criminal Laws and Procedures, Committee on the
Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR McClELLAN : In response to your letter of February 3, 1972, in which you expressed an interest in suggestions drawn from comparative law that might help in drafting a Federal Penal Code for this country, I am sending you enclosed a Memorandum composed of two parts: A. An Introductory Part dealing with certain principles which I believe to be essential in utilizing foreign materials; B Comment on More Specific Topics. Since it is my belief that no foreign rule or solution should be considered apart from a context, I should appreciate it if this Memorandum were to be reproduced in its totality rather than partially or in parts. Very sincerely yours,
STATEMENT BY HELEN SILVING, PROFESSOR OF LAW, UNIVERSITY OF PUERTO Rico,
COMPARING STUDY DRAFT OF PROPOSED NEW FEDERAL CRIMINAL CODE TO EUROPEAN PENAL CODES
I am gratified to find that a Subcommittee of a Committee of the Senate wishes to include in its deliberations concerning a Draft Study of the Proposed New Federal Criminal Code lessons to be derived from experiences of foreign nations, especially those of the European Continent.1 I have been stressing the need for cross-cultural fertilization of legal thought for many years, and I should be pleased to cooperate to the best of my abilities with the Subcommittee in its commendable task. But the time allotted to my reply is much too short for anything but a most cursory consideration. I shall, therefore, limit myself to a few remarks of a general nature. Such limitation is also justified by the fact that most of the specific questions addressed to me have already been ably answered by Professors Andanaes and Damaska.3 Moreover, I am glad to note that, as your letter of February 3, 1972 indicates, you are "searching for ideas and possibilities rather than material for a treatise or encyclopedia.” Nevertheless, certain preliminary matters of a comprehensive nature should be taken into account by way of introduction to anything said thereafter. I. Nature of Comparative Law
Comparative law does not--at any rate, should not-consist of ad hoc comparisons of disparate individual rules, principles or case-solutions. For each rule, principle or solution plays its crucial role within an integral system ; it is not truly "functional," perhaps not even "relevant,” outside of the system. Professor Paul K. Ryu of Seoul, Korea has demonstrated this feature of law and culture in his “field theory of culture." 4 Each "system,” in turn, forms part of an ideology, which has its roots in a specific history of ideas, ideologies and attitudes, evolving an overall ethical, legal, sociological, political, in fact, also epistemological, project of thinking. As an illustration of a basic political-epistemological approach I might mention the fact that Marxist law proceeds from the ontological view of "naive realism" which eliminates epistemological doubts regarding the possibility of reliability of official access to knowledge of truth or justice. According to this ideology, which has its parallel in the Marxist view of economic value as inherent in the things themselves rather than determined by market valuations, there appears to be no need to formulate legal rules (especially those of evidence) in terms of "probabilities" stemming
1 This evinces from the letter to me of the Honorable John L. McClellan, Chairman of the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary. dated February 3, 1972, and the inclusion of comments by Professor Andanaes and Professor Damaska, in the Working Papers of the National Commission on Reform of Federal Criminal Laws (Established by Congress in Public Law 89-801, see Volume III (1971), pages 1451-1505.
According to the above-cited letter of February 3rd, my reply was to reach the subcommittee before March 17th.
? See the Memoranda cited above, note 1.
* Paul, K. Ryu, "Field Theory" in the Study of Cultures: Its Application to Korean Culture, in Symposium on the Occasion of the Third East West Philosophers Conference (Univ. of Hawaii Press, pp. 648-669 (1962]).
from epistemological doubt : in this view, the law and its organs are deemed infallible, and thus, the individual must yield.5 Our own doctrine of judicial review of the constitutionality of statutes, as well as our institution of an autonomous “law of evidence,” which take account of the fallibility of law and of judges 6 incorporate different epistemological ideas. An ideological line of thought similar to that underlying the mentioned American institutions may be found in the recent acceptance in some countries of the European Continent of the exemption or mitigation for "error of law," which on a verbal level has been also adopted in the Soviet Union, but is outright rejected in this country.s But, as will be shown, in the mentioned European countries, that policy is believed to originate in the ideology of legal science," next to be discussed.
Another example of an ideological underpinning of legal approaches is the continental European jurists' belief in "Criminal Law Science" as a source of law interpretation and unavowed law-creation. In earlier periods of our own law there obtained a remotely similar ideology that a specifically “legal science" can reveal what "is" law or proper law. But when we speak of "science” today, we have in mind disciplines that substantially assume a "causative" orientation, such as physics, chemistry, biology, anthropology, psychology, sociology. The so-called "science of law" of civil-law imprint might at best qualify as a systematization of a chosen policy scheme, as a specific type of axiology, hardly a "science" as we use this term. There is no denying the fact that the continental European jurists' "science of criminal law” affords certain legality sa feguards which we would simply classify as considerations of a constitutional order. On the other hand, it has introduced into the law of civil-law countries a rigidity utilized by jurists in—often unconscious_schemes of manipulating symbols rather than determining consistent policy choices.
The fact that we proceed from constitutional policy guidelines rather than from would-be "scientific considerations” of the described nature, is an asset which we should not readily abandon. Thus, I must warn as emphatically as I can against leaving determinations of any issues of criminal law interpretation to "legal science.” Wherever such reference is made, it will ultimately result in judicial legislation, as the statute thus subject to be interpreted is to the extent of such interpretative gap "vague and uncertain.”
Marginally, it should be noticed that the inductive "common-law" approach to legal solutions, proceeding from specific issues rather than dispositions based on a Weltanschauung, itself represents a choice of "system” and is by no means wholly chaotic or indeed inchoate.10 But when code-drafting is planned, there is need for an overall policy-choice, in the light of which each individual rule should be formulated. In the specification of such rules, there is every reason to draw on the experience of other nations. However, that experience is barren unless such rules can be rationally integrated in our chosen policy scheme. II. The Place of Definitions in a Code
Contrary to predominant assumptions, a “definition" in law is not a cognitive assertion but a normative, constituent part of the legal rule for which it is being formulated. This is true whether or not the definitional portion of the rule refers in ultimate analysis to some genuine “science;" for the point in
On this, compare Silving, Essays on Criminal Procedure 286–288, and footnote 6 (1964).
On the fallibility of judges, see particularly the illuminating writings of the late Judge Jerome Frank. “Are Judges Human P” 80 U. Pa. L. Rev. 17 (1931); If Men Were Angels (1942); Courts on Trial ; Myth and Reality in American Justice (1949).
The belief in the “infallibility of judges in Marxian ideology forms part of the official Marxian interpretation of the continental European doctrine of "free evaluation of proof.” On this interpretation, deviating from that of the Western democracies, see Silving, op. cit., supra, at 154-155.
See on the theory and practice of “error of law" doctrine in the Soviet Union, Ryu & Silving. Error Juris: A Comparative Study, U. Pa. L. Rev. 421, at 434, 466 (1957). The Soviet acceptance of this doctrine-even though practically only verbal-is inconsistent with its official ontological approach.
* See the Study Draft $ 610, which admits such error only on the basis of a sort of "fault of government" basis, while one might well ask whether the government (including, if course, State Governments) is free of blame for not teaching criminal law in public schools.
* On this see Ryu & Silving, Toward a Rational System of Criminal Law, Seoul National University Law Review 1962, pp. 1 et seq. ; also 32 University of Puerto Rico Law Rev. 119 (1963); in part reproduced in Silving, Criminal Justice, Volume 1, in the here pertinent part, at pp. 301-305 (1971).
19 See on this Silving, Sources of Law, at pp.97–124 (1968).
issue might be controversial in the respective science itself, and the legislator should certainly be aware of the fact that in referring the judge to "science," he is actually permitting him to resolve a scientific controversy. Certainly, however, delegating to the judge disposition of an issue of the so-called “legal science" is opening the door to "judicial legislation,” delegating legislative functions to the judicial branch, and in all likelihood creating “vague and uncertain" legislation.
The question of whether a Penal Code should or should not have definitions of general concepts, such as causation, intent, negligence, is controversial in civil-law countries. To be sure, experiences with some penal code definitions, particularly those of the Italian Penal Code, have been most disappointing, since these definitions do not actually indicate any legislative choice of policy; they lend themselves to inconsistent interpretations and often amount to useless "idem per idem" translations, as in defining "negligence" by "imprudence." (Art. 43, par. 3, Italiam Penal Code ; for translation see Silving, Criminal Jus. tice, vol. 2, 1971, at 683). In Germany, statutory law (including the latest version, Law of July 4, 1969. BGB1. I 717) does not define either intent, negligence, or causation, the theory being that these concepts can be best defined by "legal science”. Actually, projects submitted by various groups in the preparatory stages of the German Code did define “intent" and "negligence" (see $$ 16–18 of the Draft of 1962, and $S 17-18 of the so-called “Alternative Draft" [1969 version]), but these definitions were omitted in the final Act, along with the definition of "causation". As the preparatory drafts were the creature of the representatives of so-called "legal science" (mostly law-professors), one might assume their definitions to have been "scientific" enough for adoption in the Code. Indeed, it seems strange to expect judges to define “scientific" notions which “men of science" are unable to define in general terms.
It is a postulate of our constitutional “legality” barring “vagueness and uncertainty" of statutory terms as well as enjoining "separation of powers," that definitions in a Penal Code be made by legislators. However, utmost care should be exercised to make these definitions truly meaningful in the light of latest teachings of "language analysis.” In terms of the philosophies of Charles Peirce, Wittgenstein, and others, these definitions must convey to judges the legislative choice reached by legislators. III. Constitutional Substantive Criminal Law
"Constitutionalism” is perhaps the greatest American contribution to the world's legal culture. Our principle of judicial review of the constitutionality of statutes served as a pattern for the so-called “professorial constitutions" of Professors Preuss in Germany (Weimar Constitution) and Kelsen in Austria (1919 Constitution). But the incidents of constitutionalism have developed in a somewhat distinctive direction in these countries. 11 The differences are pertinent to the topic of the instant memorandum, but require an elaboration which would exceed its scope in terms of time and space. A few selective points of difference must suffice. In this country stress is placed on procedural legality, whereas in countries of continental Europe greater significance is attributed to substantive "legality." This is in accordance with the general preference in Europe for "substantive law" over "procedure,” the latter being regarded as "instrumental” rather than “material.” To it comes that, e.g., the Bonn Constitution is very much younger than ours and has developed more elaborate specified modern notions, such "dignity," freedom personality development,"
" 12 which in our federal Constitution are at best implied. The fact is that our "substantive constitutional criminal law” is but incipient and as yet ill-equipped to resist the impact of archaic and ancient law survivals, supported by our traditional orientation to the past as source of wisdom.
COMMENTS ON MORE SPECIFIC TOPICS
1. Our “Police Power” Ideology Compared with the More Restrictive Substan
tive Law Notions of Civil-Law Jurists Our prevailing ideology is that the police power of a state (also the Federal Union) in substantive criminal law matters is very wide. Only when it affects
11 For details see Hans Spanner, Rechtliche und politische Grenzen der Verfassungsgerichtsbarkeit, an expert report rendered in the Proceedings of the First Austrian Jurists' Conference. Verhandlungen des ersten oesterrichischen Juristentages, Band I, 2. Teil, Vienna 1961.
12 See on these conceptions Silving, Criminal Justice, volume 1, op. cit, supra, at pp. 67-68; and vol. 2, 818-819.