The Debate in Criminal Law

  • Daniel González Lagier
Part of the Law and Philosophy Library book series (LAPS, volume 67)


In the previous chapter, I have tried to show that the debate about the individuation of actions (one of the most relevant, but not the only debate about action in the sphere of the philosophy of action) revolves around three different aspects of actions, and that rather than focusing exclusively on one of these aspects, it may be more fruitful to construct a theory of action with three levels, which take into account each one of those aspects, respectively. In this chapter, I attempt to show that a lack of distinction between the three aspects (or, more precisely, the reduction of the phenomenon of action to only one of them) also underlies some controversies that have taken place within Continental criminal law (and to some extent also in Anglo-Saxon law, to which I will refer more briefly). In Continental criminal law, besides the problems that are intrinsic to the concept of action, we encounter some additional difficulties: First of all, on many occasions the discussion among criminal lawyers has been plagued by the attempt to derive a number of normative consequences from an assumed ontological structure of action. As we have seen in Chapter I, the concept of action can be useful for the criminal law insofar as it enables one to treat many of the problems in that branch of the law in a generic fashion. If legislation on criminal matters must give


Bodily Movement Social Theory Intentional Action Causal Chain Causal Theory 
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  1. 1.
    On the problems a conceptualist approach (holding that normative solutions can be derived from the combination of the different elements of an offence) or a realist approach (holding that there is such a thing as a real, objective definition of action and of crime) raises in the criminal-law doctrine, cf., e. g., Nino 1980, pp. 64 ff.Google Scholar
  2. 2.
    Rodriguez Mourullo 1966, p. 221, quoted from Cobo del Rosal/Vives Antón 1984, p. 320.Google Scholar
  3. 3.
    Quoted from Gimbernat Ordeig 1990, p. 121.Google Scholar
  4. 4.
    In presenting the causal, teleological and social theories of action, I will refer to their most radical versions, in order to bring out more clearly the differences between them and to underscore the thesis of the present investigation. I am aware of the fact that there are less radical versions of each one of these theories to which some of the criticisms I will mention do not apply.Google Scholar
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    Quoted from Vives Antón 1996, p. 103.Google Scholar
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    Ibid. p. 106.Google Scholar
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    Ibid. p. 105.Google Scholar
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    Ibid. p. 105.Google Scholar
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    Ibid. p. 106.Google Scholar
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    An example of an action on which no value-judgment can be passed is the following: „If one starts from a conception which describes the ‘substance’ of the offence of falsification of documents as consisting in producing or erasing ink-spots on a piece of paper, then with that description one has not provided any ground on which judgments of unlawfulness and culpability can be based, since one has not identified anything that could as such be the object of an assessment of disvalue or of blame“ (ibid. p. 106).Google Scholar
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    Ibid. p. 104.Google Scholar
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    Ibid. p. 107.Google Scholar
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    Vives Antón 1996, p. 106.Google Scholar
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    On these criteria, cf., e. g., Gómez Benitez 1988, pp. 22 ff.Google Scholar
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    Welzel 1951, p. 244.Google Scholar
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    Welzel 1947, p. 28.Google Scholar
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    On these two traditions, cf. von Wright 1971, ch. 1; also Mardones 1991.Google Scholar
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    Quoted from Jaén Vallejo 1994, p. 58.Google Scholar
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    Quoted from Vives Antón 1996, p. 115.Google Scholar
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    The quotes are taken from Jaén Vallejo 1994, pp. 57 and 58.Google Scholar
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    Quoted from ibid. p. 58.Google Scholar
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    Vives Antón 1996, p. 205.Google Scholar
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    Cf. above, Chapter III, sect. 3.Google Scholar
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    Cf. Bulygin 1986, Sect. 2; Alchourrón 1986, p. 173.Google Scholar
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    On this important distinction, cf., e. g., Grice 1989a, pp. 88 ff.; see also Grice 1971. Below, I give an example that may help to understand the distinction.Google Scholar
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    Vives Antón 1996, p. 214.Google Scholar
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    Ibid. p. 218.Google Scholar
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    Ibid. p. 219.Google Scholar
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    As can be seen in the chess example, Tomás Vives makes no reference whatsoever to the standpoint of the agents (thus adopting a position that is totally opposed to that of the teleological theory, though equally radical) who obviously could not say that they are playing chess. However, the agent’s point of view is too important to be left aside by a theory of action.Google Scholar
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    Cf. Searle 1979b.Google Scholar
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    For a detailed presentation of the differences between the treatment of criminal liability in Continental law and in Anglo-Saxon law, cf., e. g., Nino 1980, chs. I and II.Google Scholar
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    Nino 1980, pp. 189 ff., points out the problems caused by the lack of systematic studies of the concept of action (and, in general, on criminal liability) and its more casuistic treatment in Anglo-Saxon law (which he calls ‘the informal fallacy’).Google Scholar
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    On this point, cf. Nino 1980, pp. 107 ff. In Anglo-Saxon criminal law, no general doctrine of unlawfulness has been developed, but some authors discuss whether the causes of justification are part of the actus reus (in which case one could say that the actus reus includes something analogous to the requirement of unlawfulness in Continental law), or whether they are an independent element. On this discussion, cf,. e. g., Moore 1993, pp. 177–183.Google Scholar
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    Cf. Duff 1993, pp. 74 f.Google Scholar
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    Hart 1973, p. 95.Google Scholar
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    Quoted from Moore 1993, p. 78.Google Scholar
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    Quoted from ibid.Google Scholar
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    Quoted from Hart 1973, p. 98.Google Scholar
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    Cf. Moore 1993, pp. 44 f.Google Scholar
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    Ibid. p. 191.Google Scholar
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    Hart 1973, p. 103.Google Scholar
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    Cf. Duff 1993, p. 82.Google Scholar
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    Tur 1993, p. 213.Google Scholar
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    Hart 1973, p. 38.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 2003

Authors and Affiliations

  • Daniel González Lagier
    • 1
  1. 1.University of AlicanteAlicanteSpain

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