Project 1: The Concept of Crime

This project aims at discussing the current conception of the crime concept - the German Verbrechenslehre or the Swedish Brottsbegreppet - in Norwegian criminal law.

This crime concept has not been subject of investigation in the Norwegian criminal law science. It is telling that one in Norwegian criminal law lacks a concept similar to the mentioned German and Swedish ones. However, even though one has not investigated into the crime concept in the Norwegian criminal law science, the current conceptions of the general part of Norwegian criminal law is obviously mirroring or departing from some concepts and ideas which can be reconstructed as a complete crime doctrine.

Even though the categorisation representing a crime doctrine at several points has obvious impact on the approach and presented solutions to different more or less specific questions within the general part, its deeper ideological and theoretical implications and presuppositions have not to any notable extent been discussed. The general part of Norwegian criminal law is first and foremost "inductively" created through contributions based on investigations of specific subjects like omissions. The traditional approach in Norwegian criminal law is a categorisation of the criteria for criminal responsibility in two, the objective and the subjective parts. This categorisation follows a clearly "Cartesian" line of thought, sorting the criteria in respectively the objective or subjective categories due to whether they are referring to physical or mental dimension of the concrete act. As such, the categorisation has a clear familiarity with the traditional Anglo-American approach. This approach is composed of the classical distinction between actus reus and mens rea, which together constitute the offence. The offence on its hand is often supplied by a category of defences, even though these defences have traditionally had a somewhat ambiguous system status (sometimes attempted included in the mens rea category or as mentioned, as a category added to the overall offence category). The only alternative to this approach is the approach of Hagerup, which in general was inspired by the German criminal law literature. However, Hagerup's writings on the subject were not particularly extensive as he in his writings covered more or less the entire law at his time.

As the criminal law science in other countries, like Germany, Sweden and Finland, all starts from different, and more well-grounded, categorisations, there are good reasons to investigate into this overall framework of the general part of the criminal law. In fact, the foreign approaches similar to the Norwegian dualistic approach, has come under manifest theoretical criticism. In the Nordic countries, the traditional approach has been challenged in particular in Sweden, where Nils Jareborg has launched an alternative approach. The critique of the traditional dualistic approach is currently also manifest in the Anglo-American discussion, where there is currently developing a more advanced theoretical discussion, expanding the perspectives of the traditionally pragmatic and procedural-orientated approach found in this discussion. In Germany, the classical school came early under attack, first by the neo-Kantian, neo-classical school, then later the finalist school originating from the works of Hans Welzel. Contributions to the current discussion, drawing on this historical evolution, is currently in general starting from tripartite structure, dividing the criteria of responsibility within the Verbrechenslehre into Tatbestand, Rechtswidrigkeit and Schuld, in addition to the criterion of Handlung often made use of as an entrance-point to the Verbrechenslehre. Also, departing from this discussion, the discussion at more concrete levels within this structure in for instance Germany has given rise to several important insights in regard of the construction of the crime doctrine, insights that can not be fully captured without an understanding of this overall discussion regarding the crime doctrine. In sum, there are in regard of also the general part and crime doctrine of the Norwegian criminal law, many insights to be drawn from the theoretical discussions in these countries. As such, one important objective of this project is to incorporate this discussion into the Norwegian criminal law and criminal law science, as a starting point in a larger attempt to facilitate it with a more systematic, theoretically coherent and complete crime doctrine.

Central questions for this project will be a deeper understanding 1) of the impact and importance of the precise and theoretically adequate structure of the criteria of responsibility within the general part, 2) of the ideological foundation of the criteria of responsibility within the general part, 3) an understanding of the important discussions in different countries, not least the advanced German discussion, regarding the crime doctrine, 4) of the theoretical premises and tools for the construction of a categorisation of the criteria of responsibility of the general part, in particular the methodological questions regarding how the criminal law science should conceive a general part and a crime doctrine, and in addition 5), as a contrast to the current conception of the crime doctrine in Norwegian criminal law, the investigation will aim at an identification and discussion on the most central breaking points in the current stand on the crime doctrine in different contexts. This identification will represent a starting point for questioning the traditional Norwegian conception of the crime doctrine, and discuss a development of it in regard of its most vulnerable points. In sum, through these questions the aim of the project is to be able to present at least a rudimentary sketch for an alternative, and theoretically better founded, categorisation of the criteria of responsibility within the Norwegian criminal law.

In closing, it shall be underlined that a discussion of the crime concept in Norwegian criminal law seems needed. First of all, the current approach does as mentioned rest on inadequate theoretical premises. From a legal scientific point of view, this is unfortunate as the requirement of correctness is constitutive for the scientific discussion. Second, it is reason to believe that this inadequate approach has consequences for the capacity of the crime concept to fill its functions in the criminal law, for instance facilitating an easier and more correct application of the criminal law in courts, its educative function and not least its function to represent and secure the respect of some basic principles concerning imputation of criminal responsibility. An inadequate structure and/or conceptual framework may at worst result in inadequate or wrong judgements concerning the criminal liability of individuals. In addition, the theoretical expansion of the Norwegian discussion on the crime concept as a core element in the general part will also contribute to make the Norwegian criminal law science capable of participating in a more potent manner in regard of the current (international) discussion on the internationalising of the criminal law. It can also be added that a more advanced understanding of the crime doctrine of the criminal law is of central importance in regard of the current evolution of the international (in wide sense) criminal law, where the evolution of general parts is a central contemporary challenge.