Who is the murderer in these cases?

[Rodion Romanovich]

I'm just curious to see what people think about who (if any) is/are guilty in the following cases:

Below, the word "harasses" should be interpreted as anything between "rapes daughter", "rapes", "bullies", "beats", "tries to systematically breakdown self-confidence of". If the different of those would make it different cases, please state the differences between the cases.
1. A orders B to kill C. B obeys.
2. A harasses B. B commits suicide.
3. A harasses B. B gets mad. B kills another person.
4. A harasses B. B gets mad. B commits a genocide of group C.
5. A threatens to kill B if B doesn't kill C. B obeys.
6. A threatens to kill B if B doesn't kill C. B disobeys, and A goes around until he finds a person D, who can kill B.
7. God tells A to kill B. A kills B.
8. A tells B that God has told B to kill C. B kills C.
9. A tries to kill B physically. B then kills A.
10. A harasses B to the verge of suicide. B then kills A.
11. A harasses B, B harasses C, C commits suicide.
12. A harasses B, B harasses C, C harasses D, D commits suicide.
13. A harasses B, B harasses C, C murders D.
14. A harasses B, B harasses C, C harasses D, D murders E.
15. B is a person known to be mentally ill. A tells B to commit murder. B obeys.
16. B is extremely poor. A pays B a lot of money to commit murder. B obeys.

[Keba]

All right, a quick rundown ...

1. A and B
2. A
3. A and B
4. A and B
5. Difficult one ... definitely A, B could possibly get out in court
6. A and D
7. Nobody ... A gets out on insanity, whether he wants to or not
8. A and B ... A is still insanity, B gets landed for the murder, chances are A gets away with it
9. Nobody, justified self-defense
10. Difficult one ... I'd say A and B ... extenuating circumstances work for B in court
11. A definitely, B probably
12. Similar to above, but with C being less likely than B
13. A, B (them aiding, or maybe assisting) and C
14. A, B, C, D
15. A, B goes insanity
16. A and B

Legally, 11-14 are somewhat problematic, so in those cases I merely used what I believe should be done. These ones entirely depend on the definition of the word harass, if it is an illegal action, then they would answer. Of course, the ones after A probably get extenuating circumstances in court and for their punishement. I suppose the actions could be crammed under the aiding and abetting in murder.

As for the others, I'm mainly orienting myself by law, not my morals.

[Csargo]

A,B,C,D are all murderers

[Viking]

The one that make the actual kill, is always the murderer; since the human mind is able to think for itself.
The others are indirect murderers at best.

The exception might be with a mentally ill person: if he has little or no free will, then he might be a tool, just like a gun is.

In case nr.9, B is the murderer, although he should not be punished for his action if killing A was the only way, as he saw it, that he could survive.

[Kaiser of Arabia]

Osama bin Laden.

[Major Robert Dump]

While I understand their intent, I'm not a big fan of indirect second degree murder charges, like 2 guys rob a store, one robber gets shot dead, the living robber is tried for 2nd degree murder for the dead robbers death (even though a cop or store worker did the actual shooting) and usually he is found guilty. It varies from state to state, and I think it sets very, very bad precedent.

[Csargo]

Osama bin Laden.

Kaiser your just a freedom hater.























P.S. I'm joking:laugh4:

[Csargo]

Kaiser your just a freedom hater.























P.S. I'm joking:laugh4:

I just realized this makes no sense:sweatdrop:

Im an idiot

[doc_bean]

note: by second degree I mean ordering someone to kill someone else, I'm not sure if it's the correct legal term, but i'm pretty sure it isn't allowed...By manslaughter I mean an action resulting in the death of another person, without this being the intent

1. B is guilty of murder, A is guilty of second degree murder (at least)
2. Depends on the kind of harasment, however, A is never guilty of murder, manslaughter or anything like that
3. B of murder
4. B is an idiot, and guilty, and like before A is only guilty of the crime (s)he committed, not genocide
5. B involuntary manslaughter (if that exists) or even self defense, A murder
6. D obviously, A second degree
7. A god can do his own killing...
8. B, A second degree
9. depends on the time between the actions, A is at least guilty of attempted murder, B might have acted in self defense, I'm willing to accept temp insanity if the time between both events was very short (seconds, minutes, it would be the same scene in a movie...), if the time in between was a matter of years it was certainly murder. If it was a matter of hours, it's tough to say just from the data...
10. depending on the kind of harasment, might be self defense (at least perceivedthat way by B), or temp insanity (killing the guy who just raped you...)
11. A is not guilty of what happened to C, B isn't guilty of murder (or manslaughter)
12. same logic as 11
13 C of murder
14 D of murder
15 depends on the kind of illness, B could be considered 'insane' and just get thrown into the psychiatric system, A could B considered a murderer (at least second degree, probably first if B was seriously ill)
16 A second degree, B first. Unless there was no other way of B to obtain food for him and his family, incl prostitution, theft, work, social services, etc, which in reality is never so, then b gets manslaughter

[Banquo's Ghost]

Below, the word "harasses" should be interpreted as anything between "rapes daughter", "rapes", "bullies", "beats", "tries to systematically breakdown self-confidence of". If the different of those would make it different cases, please state the differences between the cases.

OK, I'll play, despite the clear flaw that treats undermining self-confidence as being remotely akin to being a rape victim. Since the replies so far seem to be based in US terms, I'll try to contribute a UK/Irish legal perspective.

1. This would be treated as conspiracy to murder (perhaps incitment) and both A and B would be guilty of murder. (Note, the crime of murder, not the act of murder).
2. Depending on the circumstances of the harrassment, a manslaughter charge against A might succeed.
3. B is guilty of murder, but may have mitigating circumstances which reduce sentence.
4. Genocide is rarely commited by an individual, and is therefore way too complex to reduce to this.
5. B gets murder, with mitigating circumstances. A gets conspiracy to murder or procuration, serves much longer than B.
6. As 1, but with D and A.
7. There is no God, therefore A is guilty of murder.
8. There is no God, therefore see 1 above.
9. Self-defence is allowed as a legal defence, therefore B would be aquitted, unless he was judged to have used unreasonable force. (ie if he had disarmed his attacker and tied him up, then killed him in cold blood). The interpretation of reasonable force is a thorny one.
10. Depends on the harrassment, but if done immediately, this would count in almost all cases as self-defence. Over a longer period of time, it is more complex, but women have been acquitted of murder after finally killing their partner after years of abuse, even if it seemed cold-blooded.
11. Almost certainly no murder charge for anyone.
12. You're getting desperate now :smile: As 11.
13. C guilty of murder.
14. Bored now. ~:0
15. As 1, but with diminished responsibility for B.
16. As 1. Being poor is no defence.


Not sure where that gets us, but what the hey :coffeenews:

[Haudegen]

I´ll try to respond from the perspective of German criminal law. Any German law student who reads this may tell me if I´m wrong somewhere :laugh4:


1. A orders B to kill C. B obeys.
B is a murderer, A is guilty of inciting B´s murder. The punishment for both is the same in German law.

2. A harasses B. B commits suicide.
A is a murderer if B´s responibility is reduced as a result of the harassment and if A intended B to kill himself.

3. A harasses B. B gets mad. B kills another person.
Basically the same as No. 2. The person in the background (=A) is only a murderer if the person who commits the crime with his own hands lacks something that constitutes his own responsibility and the actions are running according to the plan of A.

4. A harasses B. B gets mad. B commits a genocide of group C.
See No. 3. The size of the crime generally doesn´t matter in theory. However if A intended B to commit a lesser crime than a genocide (for example a single murder), then he´s only responsible for this and not for the genocide.

5. A threatens to kill B if B doesn't kill C. B obeys.
A is a murderer, B too. However there is a chance for B to be acquitted if murdering C was the only way to survive for B.

6. A threatens to kill B if B doesn't kill C. B disobeys, and A goes around until he finds a person D, who can kill B.
Generally A would be guilty of inciting D to murder C. (See above No. 1). D is fully responsible for his crime. Therefore the person in the background can not be a murderer himself.

However there is an exception from the rule I stated in No. 3 (see above), if A had an unlimited control over a criminal organisation and therefore he was able to find a willing servant without any problems. As an example think of a mafia boss or something. German courts applied this principle also against the former functionaries of the East German government because they ordered the border guards on the Berlin wall to kill fugitives.

7. God tells A to kill B. A kills B.
Criminal laws apply only towards human beings. Gods, animals, martians and other non-humans can´t be punished at all. :laugh4: A is a murderer, assuming he is mentally sane.

8. A tells B that God has told B to kill C. B kills C.
This is very similar to a real case that happened in Germany: A made B believe that god´s law overruled the normal laws. And A claimed that god wanted B to kill C. B tried to kill C.

The court found that B was fully responsible, but still A was also found guilty of attempted murder. This result looks like another exception from the general rule I stated above. But B was only fully responsible because the court held that B could (=should) have avoided being fooled by A in this way. Therefore technically spoken A used B as a tool is therefore a murderer.

9. A tries to kill B physically. B then kills A..
Self defence, B will be acquitted. However only if A´s attacks are still present at the time of B´s action. Otherwise if B killed A as revenge then he´s a murderer.

10. A harasses B to the verge of suicide. B then kills A.
Difficult. Could be self defence, but doubtful. That would require that there is no other way for B to make A stop the harassment. And A´s harassment must be present in the moment when B kills A. If A has stopped insulting (or whatever) B and was just about to leave B alone, then it´s no self defence.

If the harassment was not present in the time of B´s action then he still could be acquitted if there was a real chance that A would continue his harassment against B in the near future.

11. A harasses B, B harasses C, C commits suicide.
See No. 2. If A could be held responsible for C´s death depends upon the question, if he was able to plan and control B and C´s action. Generally that would require that B and C lack responsibility for their actions, see above.

12. A harasses B, B harasses C, C harasses D, D commits suicide
13. A harasses B, B harasses C, C murders D.
14. A harasses B, B harasses C, C harasses D, D murders E.
See No. 11.

15. B is a person known to be mentally ill. A tells B to commit murder. B obeys.
This is clearly a case where the acting person lacks responsibility. Therefore A is a murderer here.

16. B is extremely poor. A pays B a lot of money to commit murder. B obeys.
B is poor but fully responsible, A is therefore only guilty of inciting a murder. Ironically in Germany punishment is even harder if the motive is greed for money.

Very interesting questions. Are you a law student, Legio?

[master of the puppets]

murder is murder unless mentally ill, harrasment leading to murder is 2nd degree murder, harrasment leading to suicide is murder, self defense is just. no murder is right.

[Rodion Romanovich]

Thanks for the interesting replies! It's a very complex set of questions and ethical considerations, I must admit. And what's more - the subject seems to be one where the opinions are very far apart, I honestly must say I have problems finding any kind of factor that everybody I've talked to can agree, unlike most other cases where some Socratic thinking can yield a model which everybody would agree on given enough time to understand the root of their own thoughts. But here - in this subject, the opinions seem to differ a lot...

===



While I understand their intent, I'm not a big fan of indirect second degree murder charges, like 2 guys rob a store, one robber gets shot dead, the living robber is tried for 2nd degree murder for the dead robbers death (even though a cop or store worker did the actual shooting) and usually he is found guilty. It varies from state to state, and I think it sets very, very bad precedent.

I agree that this is a weak spot in 2nd degree murder charges - basically you can theoretically have intended no harm for anybody, and still be charged. No, there must certainly be some proof of intent of causing the death of somebody to try someone for murder. And if you have the intent of hurting but not murdering, then the death caused by you should perhaps be treated only as an unintentional murder?

===

I noticed I made a small typo in 6 - it was supposed to be: "A goes around until he finds a person B, whom he can threaten successfully so B commits a murder of C", where the actual ethical question would be "since A knows he'll get C killed, but systematically seeks for someone who can carry it out, can A really be considered any better than a murderer? Because even if you don't consider threatening one person to kill a third isn't considered murder, wouldn't repeatedly searching until you find someone who does it be murder, and not a loophole in the moral rules?"

===



OK, I'll play, despite the clear flaw that treats undermining self-confidence as being remotely akin to being a rape victim. Since the replies so far seem to be based in US terms, I'll try to contribute a UK/Irish legal perspective.

I meant when answering the questions, if necessary, treat the different cases of harassment as different cases. I know they're not the same on most moral scales, so it's really a question of a borderline drawing question - if the harassment that makes someone else cause the death of a person makes you guilty of murder when is the harassment light enough to not make you guilty?

@Haruchai: Also, I'm wondering what makes #11 different from #2? If you can only find someone who harassed A first in #2, then A becomes innocent while he wasn't before?

===



Very interesting questions. Are you a law student, Legio?

Nope, but somewhat interested in society philosophy, where ethics and moral - and ultimately law - are relevant questions. I assume you're a law student? I must say the German law you presented sounds very thought through, both lacking any obvious large-scale contradictions, and successfully coming very close to judging the intent rather than what was achieved by the criminal.

[Haudegen]

I assume you're a law student?

Yes, I am. :book:


coming very close to judging the intent

Murder (in German: Totschlag) is defined as killing with intent. Causing someoneelse´s death by negligence is something completely different. Are there any legal systems that treat this differently?

But that´s theory, of course. In reality the judge has no proper means to find the intent of a person that has killed another. It all comes down to assumptions based on exterior circumstances.

[Banquo's Ghost]

@Haruchai: Also, I'm wondering what makes #11 different from #2? If you can only find someone who harassed A first in #2, then A becomes innocent while he wasn't before?

You're right, it's not different. There might be a manslaughter charge in both, but most unlikely. I lost track with so many similar scenarios. ~:cool:

[Soulforged]

I'm just curious to see what people think about who (if any) is/are guilty in the following cases:

Below, the word "harasses" should be interpreted as anything between "rapes daughter", "rapes", "bullies", "beats", "tries to systematically breakdown self-confidence of". If the different of those would make it different cases, please state the differences between the cases.There are various levels of harassment, but I can divide them on two in your case rape and "bully".

1. A orders B to kill C. B obeys.B is the murderer. A an instigator.

2. A harasses B. B commits suicide.There's no murder. A is an instigator, but suicide is not criminal therefore instigation to commit suicide isn't either. From the ethical point of view there's always a problem with instigation, however.

3. A harasses B. B gets mad. B kills another person.B is the murderer. A is nothing.

4. A harasses B. B gets mad. B commits a genocide of group C.The same as above.

5. A threatens to kill B if B doesn't kill C. B obeys.A is the murderer. In reality this depends on various conditions.

6. A threatens to kill B if B doesn't kill C. B disobeys, and A goes around until he finds a person D, who can kill B.I suppose you mean D kills B then. In that case D is the murderer, A an instigator and B is nothing.

7. God tells A to kill B. A kills B.LOL- God is an instigator, A is a murderer.

8. A tells B that God has told B to kill C. B kills C.A and God are instigators, B is the murderer.

9. A tries to kill B physically. B then kills A.You mean by his own hand right? In that case A performs an attempted murder, and B, as a consequence, is justified to answer in the way he did. There's no proper murder in this case.

10. A harasses B to the verge of suicide. B then kills A.B is the murderer, A is nothing. In this case some other facts should be apreaciated, as the mental state of B.

11. A harasses B, B harasses C, C commits suicide.Again there's no murder.

12. A harasses B, B harasses C, C harasses D, D commits suicide.The same as above with another subject on the equation.

13. A harasses B, B harasses C, C murders D.C is murderer. Depending on the harassement A and B could be instigators.

14. A harasses B, B harasses C, C harasses D, D murders E.The same as above: (A+B+C) and D.

15. B is a person known to be mentally ill. A tells B to commit murder. B obeys.Depends on the illness. A is the murderer, B is nothing.

16. B is extremely poor. A pays B a lot of money to commit murder. B obeys.B is the murderer, A an instigator.

Though the cases are complex in some way, this could be done even more complex. For all cases of harassment, the conditions of control of the factual situation should be considered to determine responsabilities in all cases. As it stands in your exposition, I'll stand by instigation and murder.

[Soulforged]

Murder (in German: Totschlag) is defined as killing with intent. Causing someoneelse´s death by negligence is something completely different. Are there any legal systems that treat this differently?

But that´s theory, of course. In reality the judge has no proper means to find the intent of a person that has killed another. It all comes down to assumptions based on exterior circumstances.Interesting to know someone from Germany with the same insterests. Now, I ask you Haudagen, one of the pupils of Welzel, I don't remember his name, came here to give a conference about dolus eventualis. I refer to the bolded part, the thing is that is not exactly intent what is dicussed in the crime theory lately. Intent only adds another element to the dolus, the dolus itself only requires that the subject recognices, at least, the possibility of certain result. So it requires knowlegde. The first degree of dolus, as if it has some more malice in it, requires volition (Geischt, is it?) properly said, being motivated by that knowledge. I'm really just wanting to learn how things are teached there, I assume you people read the works of Jacobs, right? Maybe a little Marcelo Sancinetti, I ask because we here learn a lot from Germany, at least on penal matter.:2thumbsup:

[Haudegen]

Thank you for your interest, Soulforged. I´m not quite sure what you are asking for. I´ll summarize the three forms of intent in German law. I think the English word "intent" is not quite the same as "Vorsatz". Therefore I will use this term instead by now.

dolus directus I

This is the form where the volition of the offender is directed at breaking a criminal law. The action is motivated by the result.

dolus directus II

Here the offender knows for sure that the result of his action will break a criminal law. His interior will is irrelevant, as he obviously has decided to act anyway.

dolus eventualis

The offender thinks that it´s possible/likely that he will break a criminal law. The obvious difficulty is to distinguish this from negligence.

If I drive through a town with 150 km/h and kill another person, is this still negligence or was the likelihood of the accident so high that we have to call it dolus eventualis? There are dozens of opinions about this in scientific literature. I could tell you more, if you want to.


You mentioned Welzel. His merit was that he developed the modern understanding of Vorsatz. This led to the splitting of the "Unrechtsbewusstsein" from the Vorsatz. This means: Vorsatz only has to contain the element of the criminal law. But the knowlegde that there is a specific criminal law (Unrechtsbewusstsein) is not part of Vorsatz. Many professors opposed his idea. However the discussion about this matter ended in the 1970s. The German legislative followed Welzel´s idea. The new § 17 S.2 StGB made clear that Unrechtsbewusstsein only needs to be potentially present.

The example I stated above under Legio´s case No. 8 shows this. B believed that the law didn´t apply to him, but he was punished as a murderer because he could have known it better (=potentielles Unrechtsbewusstsein).

An important consequence is that Vorsatz now belonged to the elements of the offence. Formerly it was considered as a part the guilt. As you may know in German law the test if someone is to be punished, is done in three steps:

1. Tatbestand (elements of the offence)
2. Rechtswidrigkeit (Are there any justifications?)
3. Schuld (I call it guilt, nor sure if it´s correct in English)

In the beginning of the 20. century the elements of the offence were only objective, exterior circumstances. Welzel now introduced the idea that many crimes wouldn´t really make sense that way. Example:

A takes B´s bike and uses it.

Is this a theft? To determine this we have to know what A has in mind when he´s taking the bike. If A wants to keep the bike for himself, it´s a theft. If he wants to return it to B immediately, it´s not a theft. The Tatbestand is meant to decribe the crime itself in a sufficient way. Therefore it is necessary to take the internal circumstances of the offender into account.

In the times before Welzel actions of offenders were only judged in an objective way. The interior attitude of the offender was just a matter of guilt.

This is what Welzel showed.


Well hopefully I was able to express what I wanted to tell :laugh4:
If you want some more info on specific matters, just ask.

[Divinus Arma]

1. A orders B to kill C. B obeys. A and B
2. A harasses B. B commits suicide. None.
3. A harasses B. B gets mad. B kills another person. B
4. A harasses B. B gets mad. B commits a genocide of group C. B
5. A threatens to kill B if B doesn't kill C. B obeys. A and B (Imagine if a criminal told a cop to kill a child and that if the cop didn't comply then the criminal would kill the cop. I would rather be killed, it is the same as taking a bullet for an innocent. Complying would make you the killer just like A.)
6. A threatens to kill B if B doesn't kill C. B disobeys, and A goes around until he finds a person D, who can kill B. A and D.
7. God tells A to kill B. A kills B. A
8. A tells B that God has told B to kill C. B kills C. B
9. A tries to kill B physically. B then kills A. Justifiable homicide
10. A harasses B to the verge of suicide. B then kills A. B
11. A harasses B, B harasses C, C commits suicide. None.
12. A harasses B, B harasses C, C harasses D, D commits suicide. None.
13. A harasses B, B harasses C, C murders D. C
14. A harasses B, B harasses C, C harasses D, D murders E. D
15. B is a person known to be mentally ill. A tells B to commit murder. B obeys. A and B
16. B is extremely poor. A pays B a lot of money to commit murder. B obeys A and B

Here is one you didn't put: A tells B to kill C (a stranger to B) or else A will kill D, and D is the son/daughter/wife/whatever of B.

[Kaiser of Arabia]

Here is one you didn't put: A tells B to kill C (a stranger to B) or else A will kill D, and D is the son/daughter/wife/whatever of B.
A, B if he complies.

[Avicenna]

These sound like WWII, especially "A harrasses [Hitler]. [Hitler] gets mad. [Hitler] commits genocide on group C.

[Soulforged]

Thank you for your interest, Soulforged. I´m not quite sure what you are asking for. I´ll summarize the three forms of intent in German law. I think the English word "intent" is not quite the same as "Vorsatz". Therefore I will use this term instead by now.I was just asking for the form in how the dolus is seen on there. The theories exported here, mainly by Jacobs have changed it all really. But I'm talking way before that, you said that the dolus requires intent (Vorsatz, I thought it was Geischt :embarassed: ). Here it's teached, I think that mainly because of Welzel, that the intent is not a requirement of the dolus, just the knowledge.


dolus directus I

This is the form where the volition of the offender is directed at breaking a criminal law. The action is motivated by the result.

dolus directus II

Here the offender knows for sure that the result of his action will break a criminal law. His interior will is irrelevant, as he obviously has decided to act anyway.

dolus eventualis

The offender thinks that it´s possible/likely that he will break a criminal law. The obvious difficulty is to distinguish this from negligence. A resume of the theory of the crime in the Backroom, nice!!:2thumbsup: At least in the subjective type...


If I drive through a town with 150 km/h and kill another person, is this still negligence or was the likelihood of the accident so high that we have to call it dolus eventualis? There are dozens of opinions about this in scientific literature. I could tell you more, if you want to.No thanks man, as much as I'll love to exchange knowledge it's out of topic, and besides I was pointing out a very specific thing.



You mentioned Welzel. His merit was that he developed the modern understanding of Vorsatz. This led to the splitting of the "Unrechtsbewusstsein" from the Vorsatz. This means: Vorsatz only has to contain the element of the criminal law. But the knowlegde that there is a specific criminal law (Unrechtsbewusstsein) is not part of Vorsatz. Many professors opposed his idea. However the discussion about this matter ended in the 1970s. The German legislative followed Welzel´s idea. The new § 17 S.2 StGB made clear that Unrechtsbewusstsein only needs to be potentially present.Thanks. I knew that Welzel revolutioned the penal matter. Now I remember the name of his pupil, he was Struensse.


An important consequence is that Vorsatz now belonged to the elements of the offence. Formerly it was considered as a part the guilt. As you may know in German law the test if someone is to be punished, is done in three steps:

1. Tatbestand (elements of the offence)
2. Rechtswidrigkeit (Are there any justifications?)
3. Schuld (I call it guilt, nor sure if it´s correct in English)Yes we've those three basic steps, following the same model, but with other names. Elements of the type objective and subjective(Elementos del tipo, objetivo y subjetivo). Antijuridicity (Antijuridicidad). And culpability (culpabilidad). However given to some compositions of the penal law here, we've a fourth step that is discussed as part of the offence or as an extra, out of the model, we call it "punibilidad" (the ability to receive punishment)


Is this a theft? To determine this we have to know what A has in mind when he´s taking the bike. If A wants to keep the bike for himself, it´s a theft. If he wants to return it to B immediately, it´s not a theft. The Tatbestand is meant to decribe the crime itself in a sufficient way. Therefore it is necessary to take the internal circumstances of the offender into account.An intensive course of the theory. This is what I was talking about with Jacobs and Sancinetti (argentinian author). Welzel was a finalist, this two are the principal exponents of the new theory, wich we could call "subjectivist" based upon the idea of separation between the subject and the result in the external world.


Well hopefully I was able to express what I wanted to tell :laugh4:
If you want some more info on specific matters, just ask.No thanks man...But if I want to bother someone with technical terms on german, when they (the university) force me to learn it then I'll come at you...:2thumbsup: Just joking.

[Haudegen]

I was just asking for the form in how the dolus is seen on there. The theories exported here, mainly by Jacobs have changed it all really. But I'm talking way before that, you said that the dolus requires intent (Vorsatz, I thought it was Geischt :embarassed: ). Here it's teached, I think that mainly because of Welzel, that the intent is not a requirement of the dolus, just the knowledge.

Well in this point Welzel was not successful here. ~;) The courts and most scientists still demand knowledge and a volition part in dolus eventualis.


Thanks. I knew that Welzel revolutioned the penal matter. Now I remember the name of his pupil, he was Struensse.

Wait, I remember something from my first semester. Did he paint a pyramid on the board and divide it in three layers? It has something to do with psychologic arguments for Welzel´s theory.


Yes we've those three basic steps, following the same model, but with other names. Elements of the type objective and subjective(Elementos del tipo, objetivo y subjetivo). Antijuridicity (Antijuridicidad). And culpability (culpabilidad). However given to some compositions of the penal law here, we've a fourth step that is discussed as part of the offence or as an extra, out of the model, we call it "punibilidad" (the ability to receive punishment).

Yes that sounds familiar. :2thumbsup: We have a fourth step in some cases too. It comes into play when an attempted crime is aborted or if the law demands the victim to apply for a punishment and so on.



An intensive course of the theory. This is what I was talking about with Jacobs and Sancinetti (argentinian author). Welzel was a finalist, this two are the principal exponents of the new theory, wich we could call "subjectivist" based upon the idea of separation between the subject and the result in the external world.

Ah yes the theory abouty the finality of actions (probably no good translation :no: ). In scientific literature we have some other theories besides Welzel´s. His theory has problems to explain how a crime can be committed by negligence.


No thanks man...But if I want to bother someone with technical terms on german, when they (the university) force me to learn it then I'll come at you...:2thumbsup: Just joking.

Ok, I´ll stop now :laugh4: . By the way: Have you by any chance heard of Burkhard Piltz? He is a lawyer who spends very much time in Buenos Aires. Once he´s been giving lessons on the UN convention on the international sales of goods at my university.

[Rodion Romanovich]

These sound like WWII, especially "A harrasses [Hitler]. [Hitler] gets mad. [Hitler] commits genocide on group C.

That's interesting, maybe deserves a new thread. After all, if you consider Hitler a murderer, even though he didn't kill a single person by his own hands and barely even ordered others to kill - he rather only "adviced" others to kill, then you have admitted that in some situations indirectly causing the death of others would be a crime. In that case, it would be a contradiction not to admit that Alois Hitler, the father of Adolf Hitler, was just as responsible - or even more responsible, than Adolf Hitler himself. Alois Hitler deliberately choose to beat his son since infanthood (yes, not since he was like 5 or so, which usually makes the children end up in mental hospital, suicide or serious crime, but since infanthood, when he had barely gotten out of his mother's womb), and Adolf Hitler's mother didn't do a thing to help, weak and cowardly as all wives of child abusers are. No, I'd blame Alois Hitler and Adolf Hitler's deputies (Himmler, Eichmann etc.) for what was done in that period. Blaming Adolf Hitler above these others is a cliché, he's blamed just because he was the frontal figure, the man who made the speeches. However I understand that those who say "I hate Hitler" probably really mean "I hate what was done during that period, and those who were responsible for it".

My view is probably that if you had free will and could choose between causing evil stuff or not, and chose to cause it, you are evil, while those without free will aren't as much to blame. Adolf Hitler obviously didn't have much free will after such a painful childhood - having been beaten as a child I know that it's damn difficult to have any kind of free will in your actions at all in such a situation - I'm still fighting to get control over myself and only succeeded 5 years ago, with traces of my past still left (it'll never go away completely). The most horrible thing about being beaten when you're a child isn't the pain, but the fear. Not the fear of being hurt, but the fear of having no rights at all, having nobody who supports you. Knowing that theoretically the oppressor could do anything he wanted, even kill you, if it would please him. Then, only teasing from that person is enough to give you panic. Teasing, telling you exactly that, that no matter what you do everybody will stand on your enemy's side. And there are several other factors that make it even worse: when you see the people who have beaten and harassed you have great success in society, while you sink lower and lower, being refused everywhere, you really start thinking it's true that anybody can do anything they want to you. And you want to give that pain to others, the only thing that can make you feel strong for a while is to be able to put others in such a powerless situation, and watch their fear. By becoming what you fear you can get rid of the pain and fear. And there's also the constant refusation that follows upon being harassed and beaten. You might think that because you've been beaten and harassed as a child, things will suddenly turn the opposite way, and you'd get a compensation for the bad start - some sort of half religious belief. But in reality it's the other way around - the bad start makes you too weak, and this weakness puts you at a disadvantage for the rest of your life, in your every undertaking. Women fear you, because your facial expression is full of fear and hatred, and employers won't give you work because they see the taught but not deserved shame in your eyes, and fascistically consider you weak even though you probably have more motivation than others because your anger makes you want to prove the society you're good, and makes you work hard when you feel that you have a chance. And then there is a third fear, which grips you. The fear that people will look at you, see your pain and fear, and that they believe you have less control over yourself than you do, so that they consider you dangerous, and want to kill, inprison or weaken you further because of it. A man in that situation, broken down as he is, might turn to women, to get some sort of appreciation. He might turn to women to hear them say "those men are mean, I don't like mean men, I'll treat you well because I pity you, and would like to help you, because you deserve it, and I know you have a much greater potential". Love novels and other traditional lies after all hammer in that message into your sorry little brain. But women aren't like that. And when you realize that the myth called love (your last hope) doesn't exist - that nobody likes you because you are you, and women are attracted to oppressive men like those who beat you, then what is left of your life? Could you possibly lose any more than that? Yes, you could, actually. When people start calling you mad or evil, giving you feelings of guilt as if you had been the one carrying out the deeds of harassment. When you are already treated as an evil person, what is the purpose of remaining good? Nothing! The only reason to remain good is for avoiding being attacked.

No, I certainly hope people correct this mistake of calling a beaten, harassed man who made hateful speeches without knowing what he did a massmurderer, and instead burn pictures of Alois Hitler (maybe also his passive bystanding wife - after all if you get a child you've taken a responsibility so even if you don't consider neutrals and bystanders guilty of a crime, this is an exception because by getting a child you've caused the scenario in which the crime will appear, and it's your duty to stop it), and deputies like Himmler, Eichmann and all the others, who truly deserve it. And blame society structure, for rewarding the oppressors. Hating Adolf Hitler is like hating an exploding nuclear power plant as if it was a person, because none of them had any free will. Instead hate the man who made a shitty safety system for the nuclear power plant, and the workers who added to that abused the safety mechanisms.

Just my two cents. Will probably be taken as very offensive and/or controversial by some, but nonetheless I can't stand hearing this cliché over and over again, often also from people who carelessly carry out harassing, beating, bullying and deprival of persons' free will - people like Alois Hitler who was truly more guilty than Adolf Hitler. If you think this post was offensive and/or controversial, please respond and tell me why. This is a really important subject to me and if I won't be able to convince others that it is possible to deprive another person of his free will, even in extreme cases, I at least want to try and understand the people who disagree. I truly don't know anymore - did I become degraded to useless because somebody arbitrarily happened to choose to start harassing and beating me and I lost most of my free will? Can I be worth something now that I have gotten back my free will, or will I always remain hated and despised because I was once hated and despised for no reason at all? I think this is the most serious problem there is in society, and law. The real criminals seldom or never get sentenced, while human tools without free will take their punishments for them. I guess nobody else has the guts to say this truth aloud - Oscar Wilde and others were punished for it. Probably I will get punished and hated for saying it. In society it's a crime to have been punished for not being guilty, and you're punished for it for the rest of your life.

[Faust|]

Well gl to you, first. Second I would say that free will is probably not always present for some people. Third I would say that this reinforces my belief that people who go through extraordinary and extreme adversity should not be leaders in any capacity and should not be given any power beyond that of a typical citizen/member of society.

[Rodion Romanovich]

Third I would say that this reinforces my belief that people who go through extraordinary and extreme adversity should not be leaders in any capacity.

I agree, but there are also cases where people can improve, and their insight given by their experiences could be valuable to making political decisions - but in that case a post as invisible political advisor behind the scenes would be more appropriate, probably. Anyway, it's exactly your kind of thoughts that make it worse for the abused people! I'm not angry at you for it or anything like that because I understand it - it's a valid thought. It's very difficult indeed to tell when a person has the potential to get out of the dangerous state. So you can choose between two scenarios: giving a madman power or making a person who was fairly near a sane state ravingly mad when he wasn't. And occasionally this person who is fairly near a sane state is made ravingly mad because he wasn't trusted, and then somehow still manages to get power - that's when you get a really dangerous scenario.

To your three points I'd like to add that fourthly: society must solve the problem of being able to be harsher against harassment of different kinds through law. The alternative is no law, or anarchism. In anarchy, a hateful oppressed person could easily kill his oppressor without fear of being punished, thus eliminate the root of his fear, and wouldn't need to hurt anybody innocent to still it. Also - everybody would think twice about harassing somebody aribtrarily because nobody has any power to do so without having to fear for the rest of his life to get killed when he least expects it. And excuses and communication to avoid misunderstandings where it seems there was an attack when there wasn't one, would be important. And if against all odds some unprovoked harasser would kill somebody immediately instead of systematically harassing them, then the poor victim would die faster, suffer less, and be unable to hurt others - not an ideal situation but the harasser is still punished because he (assuming life is lived in flocks like among monkeys) weakens the numbers of his flock and thus undermines their entire survivability - something that would make it benefitial for the entire flock to kill him quickly, especially if he's planning more than one murder. The one problem with anarchy is that from anarchy, the worse state of laws and power structures, with individuals having less power and freedom, is always reborn, often initially with laws worse than those in a civilization that has lasted longer. So either anarchy must solve the problem of laws and power structures rising, or law must solve the problem of harassment not being punishable or judgeable even in the best legal systems. How?

[Soulforged]

Well in this point Welzel was not successful here. ~;) The courts and most scientists still demand knowledge and a volition part in dolus eventualis. Well I don't blame them, dolus eventualis is a hell of a problem.

Wait, I remember something from my first semester. Did he paint a pyramid on the board and divide it in three layers? It has something to do with psychologic arguments for Welzel´s theory.No. The truth is that he kept talking on about 2 hours. I listened what I could because he wasn't a good spanish speaker. He had two translators, one of the most recognized theorist of Spain and one of the most (if not, the most) here, Sancinetti. Anyway, I got the conference on printed version, I only assisted so I could meet with people of the area, and get to know Struensse (my teacher told me that he was actually a great teacher, if he speaks german). The content was actually pretty basic. I read about it in the treaty of Clauss Roxin, it was more of a gradual matter, such as if you've 2 point of sustanciation with reality, it's dolus eventualis, if you've 1 point, it's conscient negligence.

Yes that sounds familiar. :2thumbsup: We have a fourth step in some cases too. It comes into play when an attempted crime is aborted or if the law demands the victim to apply for a punishment and so on.I think that you mean a desisted attempt. I was talking more about certain clauses in the legal texts that go like this: for the previous crimes the childs of the father are excluded from punishment. Some propose this as negative elements of the offense, others say that this is actually something extra, sui generis. Including it as part of the offense generates some issues with participation, so it wasn't accepted by the finalist, however this new theory makes it work perfectly.


Ok, I´ll stop now :laugh4: . By the way: Have you by any chance heard of Burkhard Piltz? He is a lawyer who spends very much time in Buenos Aires. Once he´s been giving lessons on the UN convention on the international sales of goods at my university.No, I haven't heard of him. Is he a penalist? It's more the doctors (I mean they've a Phd) that come here (in the Facultad de Buenos Aires) to give conferences. When they come from Europe, except from Spain, for obvious reasons, it's more something of honour, to honour the university or to honour the theorist.

[Banquo's Ghost]

Legio, I am not going to comment at length on your post because it contains a lot of things I disagree with but are clearly emotionally explosive for you.

However, I would ask you to think of this: Remarkably few people who are abused as children go on to be abusers. Most transcend their experience, one way or another. No-one can abrogate personal responsibility for their actions because of their experiences, though those experiences may be an explanation, perhaps a mitigation. Never an excuse.

For example, Ludwig van Beethoven was beaten extremely severely as a child, to the extent he lost his precious hearing as a result. He did not commit, nor encourage others to commit genocide. He loved and was loved. Yes, he led a fairly screwed up life, but who doesn't?

Finally, to my knowledge, it has always been the case in law and moral philosophy that conspiracy to murder has always been viewed as seriously as doing the act itself.

[Rodion Romanovich]

However, I would ask you to think of this: Remarkably few people who are abused as children go on to be abusers. Most transcend their experience, one way or another. No-one can abrogate personal responsibility for their actions because of their experiences, though those experiences may be an explanation, perhaps a mitigation. Never an excuse.

For example, Ludwig van Beethoven was beaten extremely severely as a child, to the extent he lost his precious hearing as a result. He did not commit, nor encourage others to commit genocide. He loved and was loved. Yes, he led a fairly screwed up life, but who doesn't?

No, on the contrary, people who are abused either end up successful because they're trusted to be hard-working and good at what they do. As mentioned, hatred gives a lot of energy. But those who aren't trusted eventually pass a line where they stop trusting themselves too. And then everything goes down.



Finally, to my knowledge, it has always been the case in law and moral philosophy that conspiracy to murder has always been viewed as seriously as doing the act itself.
Officially, yes, but in practise? No. Whenever I'm judged after a fight, I'm called aggressive because I make parrying moves against the fist of my opponents. Why should a man care about law, mankind or whether he starts becoming self-destructive with his own life if that's the case?


Legio, I am not going to comment at length on your post because it contains a lot of things I disagree with but are clearly emotionally explosive for you.
Please do comment on it, I want to know which cases of indirect murder by harassment are allowed by law and morals in general opinion. It's frustrating to hear that parrying the fists of others isn't allowed, that responding to their verbal attacks isn't allowed. So which weapons am I allowed to use to defend myself? Tell me where the line is drawn between when hurting someone indirectly isn't a crime or a sin, so I know how I can defend myself without being called immoral, because the general opinion on moral and law isn't based on logic and insight, so I can't derive it through my own contemplation, but only by asking. Or is it just as arbitrary as it seems, based on the person, rather than the offense? Please do tell me! I at least have the honor of wanting to carry out my defense against the guilty and not some random innocents.

[Banquo's Ghost]

No, on the contrary, people who are abused either end up successful because they're trusted to be hard-working and good at what they do. As mentioned, hatred gives a lot of energy. But those who aren't trusted eventually pass a line where they stop trusting themselves too. And then everything goes down.

Take out the words 'who are abused either' from your first sentence and read it again. Isn't that true of everyone? Love, greed, desire, patriotism, ambition (et al) all give energy to succeed. Someone who lies or steals may find themselves untrusted, and fall into the abyss too. Someone who is born shy with very loving parents might find themselves treated with contempt or suspicion, and fail in life because they are shocked by the harshness of the world. Or they may succeed, as I did. One gets dealt the cards - the mark of success is overcoming those cards that are bad.



Officially, yes, but in practise? No. Whenever I'm judged after a fight, I'm called aggressive because I make parrying moves against the fist of my opponents. Why should a man care about law, mankind or whether he starts becoming self-destructive with his own life if that's the case?

It's impossible to comment on your experience, as I'm not a witness. Perhaps you should avoid getting into fights in the first place?



Please do comment on it, I want to know which cases of indirect murder by harassment are allowed by law and morals in general opinion. It's frustrating to hear that parrying the fists of others isn't allowed, that responding to their verbal attacks isn't allowed. So which weapons am I allowed to use to defend myself? Tell me where the line is drawn between when hurting someone indirectly isn't a crime or a sin, so I know how I can defend myself without being called immoral, because the general opinion on moral and law isn't based on logic and insight, so I can't derive it through my own contemplation, but only by asking. Or is it just as arbitrary as it seems, based on the person, rather than the offense? Please do tell me!

Again, you have a lot of emotion invested here, and I cannot comment on situations I have not seen involving you. In most legal systems, self-defence is an accepted action, and not subject to legal sanction. However, most systems also incorporate the idea of 'reasonable force' to defend oneself, and this is subject to interpretation. Apart from enlightened places like Texas ~;) it is not considered reasonable force to defend yourself against someone poking you with their elbow on the bus by shooting them down with a Smith and Wesson.

Responding to verbal abuse by physical violence is rarely condoned by law. Again, the country where you live may have different laws.

Any arbitrariness (and of course, there is a lot in any moral or legal situation) comes in the diversity of circmstances experienced. That is why we have judges and juries - to judge what happened in that case and apply appropriate sanction.

[Rodion Romanovich]

No-one can abrogate personal responsibility for their actions because of their experiences, though those experiences may be an explanation, perhaps a mitigation. Never an excuse.

I agree, if that wasn't clear in the post above then I must have expressed myself unclearly. Maybe that's the reason why the subject is always misunderstood when discussed.



Again, you have a lot of emotion invested here, and I cannot comment on situations I have not seen involving you. In most legal systems, self-defence is an accepted action, and not subject to legal sanction. However, most systems also incorporate the idea of 'reasonable force' to defend oneself, and this is subject to interpretation. Apart from enlightened places like Texas it is not considered reasonable force to defend yourself against someone poking you with their elbow on the bus by shooting them down with a Smith and Wesson.

Responding to verbal abuse by physical violence is rarely condoned by law. Again, the country where you live may have different laws.

Any arbitrariness (and of course, there is a lot in any moral or legal situation) comes in the diversity of circmstances experienced. That is why we have judges and juries - to judge what happened in that case and apply appropriate sanction.

Ok, but if you're too weak to carry out self-defense, you're lost when the system works like that. This is for example the case in group harassment. If a group goes against a person he loses if he defends himself. All he can do is try to find the individual oppressors alone and deal with them one at the time. But then it's too long time after the attack for law to be able to call it self-defense.

Same thing goes if a single person harasses you repeatedly. It's difficult to defend oneself, because you never know when the offenses will come. So if you're not prepared always, you'll fight a losing battle. The opponent will manage to hurt you a little at the time, then withdraw, and you can't do anything back. Being in a constant readiness state gives a huge suffering, it's even the principle behind a form of Chinese torture. The skilled harasser tries to make his harassments just heavy enough to make you feel you need to enter the constant readiness state, but then once you enter the readiness state, he withdraws and hides until you've exhausted yourself, and begins again when he sees that you've gone out of the readiness state.

Also, whenever a "jury" is assigned to judge, it's always the person who can hold his head highest of the two involved in the conflict that wins. Repeated harassment and undermining of self-confidence therefore means the victim is chanceless, and doesn't dare going to a jury or court, because he knows he'll only lose even more. That might not be a problem if he's lost everything, but most people still have something left.

Furthermore, the "not respond violently to verbal abuse" rule has another weakness. It gives the harasser an option to choose the type of weapon he is best at handling. If he's good at verbal abuse he chooses verbal abuse, otherwise he chooses that the fight will be through physical violence. Should an agressor really get to choose ground before battle? An attack is after all always an attack, and I've seen cases where the attacker first chooses verbal attack because he thinks he's best at that, then goes on to physical violence because he finds out the verbal attack didn't work. The victim could have defeated the opponent if he had been able to reply to the verbal attack with violence, having the element of surprise. As it is now, the attacker always gets the element of surprise. Oh, and finally, it's easy to physically hit someone in a way so that you won't see any wounds in a court room, in ways that still cause both as much damage and pain. You can also undermine someone's self-confidence so that after enough protests when you explain that you've been beaten, you'll believe that you haven't been beaten, and excuse yourself in shame.

These factors are repeated in the most common forms of harassment: bullying, beating from fathers, beating from brothers, beating of wives, beating of husbands, beating of people because of religious or ethnical background, sexual child abuse, other sexual abuse etc. I think the main reason why people harass is because it's so impossible to prosecute them for it, and it can even result in the victim becoming prosecuted when he loses free will and self-control after repeated harassment.

[Banquo's Ghost]

These factors are repeated in the most common forms of harassment: bullying, beating from fathers, beating from brothers, beating of wives, beating of husbands, beating of people because of religious or ethnical background, sexual child abuse, other sexual abuse etc. I think the main reason why people harass is because it's so impossible to prosecute them for it, and it can even result in the victim becoming prosecuted when he loses free will and self-control after repeated harassment.

I agree that abuse in its various forms is a complex phenomenon, and not easily dealt with effectively by support agencies so that the victim can feel isolated. I would contend however, that very few ever lose their free will and thus moral responsibility for their actions.

However, my point in replying was not to address those complexities, but to challenge the idea that Adolf Hitler (or anyone) can be absolved from any part of their crimes because of what happened to them.

I'm glad we agree on that as well. :smile:

[Haudegen]

I read about it in the treaty of Clauss Roxin

One of the younger lecturers here once referred to him as the "boss of the bosses":laugh4: It seems Roxin is even more influential than I thought, if his books are even sold abroad.


I think that you mean a desisted attempt.

Of course. I must admit I am not very good with English legal terms. ~;)


I was talking more about certain clauses in the legal texts that go like this: for the previous crimes the childs of the father are excluded from punishment. Some propose this as negative elements of the offense, others say that this is actually something extra, sui generis. Including it as part of the offense generates some issues with participation, so it wasn't accepted by the finalist, however this new theory makes it work perfectly.

Now I got it. You mean for example if someone commits a false oath to prevent his father from being convicted. We have these clauses, too. I call them in my notorious clumsy way: personal reason for punishment exclusion :laugh4: (word-by-word from German)


No, I haven't heard of him. Is he a penalist?
He´s more involved in civil law, I think. His wife is Argentinian and he told us he runs an office in Buenos Aires besides his law firm in Germany. The rumor goes that he made a fortune by starting to specialise in international private law many years before the issue got that popular as it is now. The university of Bielefeld gave him the title professor iur. h.c.

[Soulforged]

One of the younger lecturers here once referred to him as the "boss of the bosses":laugh4: It seems Roxin is even more influential than I thought, if his books are even sold abroad.He's seen about in the same way here. And Germany is seen as "the world championship of penal law":laugh4: . No joke.

Of course. I must admit I am not very good with English legal terms. ~;) Well actually, neither am I :embarassed:. It was just a prima facie traduction of the spanish expression "intento desistido".

Now I got it. You mean for example if someone commits a false oath to prevent his father from being convicted. We have these clauses, too. I call them in my notorious clumsy way: personal reason for punishment exclusion :laugh4: (word-by-word from German)Yes!:2thumbsup: We call it the same way here.

He´s more involved in civil law, I think. His wife is Argentinian and he told us he runs an office in Buenos Aires besides his law firm in Germany. The rumor goes that he made a fortune by starting to specialise in international private law many years before the issue got that popular as it is now. The university of Bielefeld gave him the title professor iur. h.c.No, I don't recognize him, then again, I'm new at the field (2nd year in the study), so I'll ask for him.

[Haudegen]

He's seen about in the same way here. And Germany is seen as "the world championship of penal law":laugh4: . No joke.

But anyway you´ll probably have the edge on us in the soccer world cup ~;)


No, I don't recognize him, then again, I'm new at the field (2nd year in the study), so I'll ask for him.

He´s not a celebrity like Roxin or Welzel. It´s no big trouble to have not heard of him.