Who is the murderer in these cases?

[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.

[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. 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 . 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.

[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" 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 (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" 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" . No joke.

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

Well actually, neither am I . 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 (word-by-word from German)

Yes! 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" . 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.