Abstract
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
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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.
Rodriguez Mourullo 1966, p. 221, quoted from Cobo del Rosal/Vives Antón 1984, p. 320.
Quoted from Gimbernat Ordeig 1990, p. 121.
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.
Quoted from Vives Antón 1996, p. 103.
Ibid.
Ibid. p. 106.
Ibid. p. 105.
Ibid. p. 105.
Ibid. p. 106.
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).
Ibid. p. 104.
Ibid. p. 107.
Quoted from Welzel 1947, p. 34.
Vives Antón 1996, p. 106.
Cobo del Rosal/Vives Antón 1984, p. 348.
On these criteria, cf., e. g., Gómez Benitez 1988, pp. 22 ff.
Welzel 1951, p. 244.
Welzel 1947, p. 28.
On these two traditions, cf. von Wright 1971, ch. 1; also Mardones 1991.
Welzel 1947, p. 29.
Vives Antón 1996, p. 109.
Quoted from Jaén Vallejo 1994, p. 58.
Quoted from Vives Antón 1996, p. 114.
Cobo del Rosal/Vives Antón 1984, p. 319.
Quoted from Vives Antón 1996, p. 115.
The quotes are taken from Jaén Vallejo 1994, pp. 57 and 58.
Quoted from ibid. p. 58.
Vives Antón 1996, p. 205.
Ibid.
Ibid.
Cf. above, Chapter III, sect. 3.
Vives Antón 1996, p. 208.
Cf. Bulygin 1986, Sect. 2; Alchourrón 1986, p. 173.
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.
Vives Antón 1996, p. 214.
Ibid. p. 218.
Ibid. p. 219.
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.
Cf. Searle 1979b.
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.
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’).
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.
Cf. Duff 1993, pp. 74 f.
Hart 1973, p. 95.
Quoted from Moore 1993, p. 78.
Quoted from ibid.
Quoted from Hart 1973, p. 98.
Cf. Moore 1993, pp. 44 f.
Ibid. p. 191.
Hart 1973, p. 103.
Cf. Duff 1993, p. 82.
Tur 1993, p. 213.
Hart 1973, p. 38.
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Lagier, D.G. (2003). The Debate in Criminal Law. In: The Paradoxes of Action. Law and Philosophy Library, vol 67. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0205-8_4
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