Who is the murderer in these cases?

[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 As 11.
13. C guilty of murder.
14. Bored now.
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

[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.

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.

[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.

[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
If you want some more info on specific matters, just ask.

[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 ). 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!! 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
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... 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 ). 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. 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 ). 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... Just joking.

Ok, I´ll stop now . 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.

[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.