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  • Print publication year: 2011
  • Online publication date: July 2011

7 - The Theories and Elements of Criminal Responsibility

Summary

In the law, it is not the obvious that needs to be

specified, but the ambiguous that must be clarified.

Introduction

All criminal justice systems of the world recognize the concept of individual criminal responsibility. Consequently, individual criminal responsibility is a “general principle of law” applicable to ICL. But national criminal justice systems have developed a variety of individual criminal responsibility doctrines. The divergences that exist among families of legal systems, and within them the differences as to doctrines of criminal responsibility (and their corollary elements), make it difficult to identify among them that which would constitute “general principles of law” that could be applied to ICL. As discussed in Chapter 6, the method by which “general principles of law” can be identified in comparative criminal law makes it difficult to reach outcomes that can be ascertained with any degree of scientific validity.

Although it can be asserted that the general principle of individual criminal responsibility exists in all of the world's criminal justice systems, it cannot be said, for example, that membership in a group deemed criminal by operation, and based on that group's purposes and/or actions, or other attempts to address collective responsibility, is so generally recognized.

The range of what legal systems include as part of individual criminal responsibility includes several models, which are essentially based on the policies of prevention and repression that a given legal system decided to select and apply.