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Judicial Cognizance of Guilt-Consciousness

Published online by Cambridge University Press:  04 July 2014

Haim H. Cohn
Haim H. Cohn
Affiliation:
Former Justice of the Supreme Court of Israel.
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Extract

The term “guilt” connotes many different phenomena: theology, philosophy, ethics, psychology and law all contributed to the variety of connotations. It is not my purpose, nor do I pretend to engage in etymological or anthropological research into the evolution of the various aspects and concepts of guilt: I shall try to describe and distinguish only those phenomena of guilt of which judges may have to take cognizance for the proper exercise of punitive discretion.

First and foremost, there is “guilt” within the meaning of criminal law. On the one hand, guilt is spoken of as denoting the mental element in crime: the guilt of one who committed a criminal act — actus reus — presupposes the criminal mind — mens rea; or, an actus reus is transformed into guilt by the supervenience of mens rea. Whether the mens rea is intent or wilfulness, or only negligence or recklessness, does not affect the incidence of guilt, but may well raise the question of degree of guilt. On the other hand, “guilt” is the result of a verdict to the effect that the accused is criminally responsible (“finding of guilty”), and it is in this sense that the accused may “plead guilty”.

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Articles
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Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 59 - 83
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 E.g., Silving, H., Essays on Mental Incapacity and Criminal Conduct (1967) 58, at 61 ff.Google Scholar

2 Cf. Feller, S. Z., Elements of Criminal Law (Jerusalem, 1984, in Hebrew) Vol. 1, p. 42.Google Scholar

3 Ibid., at 496–497, 616 ff.

4 E.g., Buber, M., “Guilt and Guilt-Feelinge”, in Smith, R. W., ed., Guilt, Man and Society (1971) 85 ff.Google Scholar

5 The differentiation between the good conscience (conscienta virtutis) and the bad conscience (conscientia vitiorum) goes back to early Roman literature and was elaborated by Seneca (see Barth, P., Die Stoa (1903) 104–105Google Scholar). But Cicero already used the word conscientia as denoting a bad conscience, and so it remained in use (for instance: conscientia mille testes—the (bad) conscience is like a thousand witnesses). No mention of a (good or bad) conscience is made in ancient Hebrew sources: the Hebrew word for conscience, matzpun, was apparently used for the first time by Rabbi Yehuda HaLevi (Kusari: V 28). Nor had the ancient Greeks a particular term for conscience: see Wilamowitz-Moellendorf, U. von, Der Glaube der Hellenen (2nd ed., 1955) Vol. II, p. 386.Google Scholar

6 Kant said that a vigilant conscience is the most severe and unbending judge man can encounter (Kritik der reinen Vernunft (1788) 100). An anonymous book printed in Nuremberg in 1690 said that a bloody conscience becomes the criminal judge against himself and is the only incorruptible judge (quoted by Reiwald, P., Society and its Criminals (1949) 52Google Scholar). Nietzsche speaks of the absolute authority of the conscience (Der Wille zur Macht (1887) 20). And Sophocles already called pangs of conscience “the erinyes (= avengers) in the brain” (Antigone 603).

7 On this subject I dwelt in my lecture on the “Immorality of Punishment” (1991) 25 Is.L.R. 283 ff. Kant's prescription that all punishment, to be just, must be palatable to the offender, remained the illusion of an idealist (n. 6, 66).

8 Guilt-feelings may also cause “compulsory-obsessional neuroses, anxiety hysteria, and other types of psychosis”: Abrahameen, D., Crime and the Human Mind (1944) 32.Google Scholar But these seem to be extreme cases. And see text at nn. 54, 67, 68 infra.

9 There are exceptions. We speak, however figuratively, of the “voice of conscience” which urges to be heard not only by oneself but also by others: Morris, H., On Guilt and Innocence (1976) 62.Google Scholar

10 Roche, P. U., The Criminal Mind (1958) 111.Google Scholar

11 As to law and morals, there is a vast literature in law, in philosophy and in theology. Among the most prominent jurists who wrote on the subject are: Bentham, J., Principles of Morals and Legislation (1823) XVIIGoogle Scholar; Radbruch, G., Rechtsphilosophie (3rd ed., 1932) 37 ffGoogle Scholar; Dabin, J., Théorie générale de Droit (1944) Vol. III, pp. 245 ff.Google Scholar; Stone, J., Human Law and Human Justice (1966)Google Scholarpassim; et mult. al.

12 For the present, I disregard the retributive and other theories of punishment.

13 For a distinction between nonnative and psychological guilt, see Kaufmann, Arthur, Dar Unrechtsbewusstsein in der Schuldlehre des Strafrechts (1950) 90.Google Scholar

14 Nietzsche once wrote that it is better to bear one's own burden of guilt, however much suffering that involves, than to pay for one's crime “with a coin which does not bear one's own image” (Die froehliche Wissenschaft (1886) III 262).

15 Oxford English Dictionary, q. v. guilt.

16 For a historical review of theories of consciousness of illegality, see Makarewicz, J., Einfuehrung in die Philosophie des Strafrechts (1906) 403 ff.Google Scholar

17 Although this famous maxim sounds as if of Roman origin, it appears to have been first coined by Anslem Feuerbach in 1813, presumably in the wake of Article 8 of the French Déclaration des Droits de l'Homme of 1789. See Williams, G., Criminal Law – General Part (2nd ed., 1961) 676Google Scholar; Feuerbach, A., Lehrbuch des gemeinen in Deutschland gueltigen peinlichen Rechts (10th ed., 1828) 18.Google Scholar And see Feller, supra n. 2, at 8.

18 This sense of injustice has already disturbed the talmudic jurists. For a full exposition, see my “The Defence of Legality in Talmudic Law”, (1987) 58 Hebrew Union College Annual 251 ff., reprinted in Cohn, H., Selected Essays (1992) 203–229.Google Scholar

19 Fuller, L., Legal Fictions (1967) 63.Google Scholar

20 The first time the presumption was laid down in England was in 1668. See Halsbury's Laws of England (Hailsham ed.) Vol. XIII, p. 628.

21 It was a rule of Roman Law laid down by Paulus: regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere: Digesto, XXII 6, 9.

22 Blackstone held the rationale of the rule to be that “every person of discretion not only may, but is bound and presumed” to know the law: Commentaries on the Laws of England (1765) Vol. IV, p. 27.

23 Fuller, supra n. 19, at 84.

24 Tourtoulon, P. de, Phihsophy in the Development of the Law (1922) 386.Google Scholar

25 Leviticus 4:2; 5:16, 17. (Unintentionality was also interpreted as ignorance of fact, Kiddushin 81b).

26 Drinking wine, for instance, is punishable only if the drinker knew of the divine prohibition: Goldziher, I., “Muslemisches Strafrecht”, in Mommsen, and Binding, , eds., Zum aeltesten Strafrecht der Kulturvoelker (1905) 104.Google Scholar

27 We find in the Bible even retroactive punishment, where the law was revealed only after the event: Leviticus 24:12, Numeri 15:34.

28 Numeri 35:11, 22–23.

29 Sanhedrin 8b, 40b-41a, 72b; Yerushalmi Sanhedrin V 1; Tosefta Sanhedrin XI 2; Makkot 7b, 9b. And see supra n. 18.

30 Corpus Juris Canonia c. 2200: “deliberata voluntas violandi legem”.

31 Ibid., c. 2202.

32 There is a similar notion in Jewish tradition, that negligence in the study and instruction of law may result in criminal intent: Mishna Avot IV 13.

33 Corpus Juris Canonici, cc. 2323, 2345, 2350.

34 Ibid., c. 2229: “ignorantia affectata”.

35 Maimonides, , Hilkhot Sanhedrin XII 1–2.Google Scholar

36 Feuerbach, supra n. 17, at 41ff. He introduced this rule into the Bavarian Criminal Code of 1813, and many later codes of German states adopted it.

37 Feller, supra n. 2, lists Germany, Austria, Switzerland, Greece, Ethiopia, as well as the Restatement of Criminal Law of the American Law Institute (at p. 201, n. 191).

38 Digesto XXII 6, 9. And see Mommsen, Th., Roemisches Strafrecht (1899) 98.Google Scholar

39 E.g., the Code of Oldenburg of 1857, and the Code of Hannover of 1840. Such “Impossibility” of knowledge has also been attributed to aliens, gypsies and Jews: Makarewicz, supra n. 16, at 409.

40 Salmond, on Jurisprudence (11th ed. by Williams, G., 1967) 436.Google Scholar

41 Austrian Criminal Code of 1796 (my translation from the German). In the Code of 1803, this rule was extended even to mala prohibita; and the Code of 1852 goes still further: “crimes and misdemeanours herein laid down are all acts or omissions the illegality of which everybody secs by himself”.

42 Makarewicz, supra n. 16, at 404.

43 E.g., U.S. v. Murdock 290 U.S. 389 (1933); Lambert v. California 355 U.S. 325, et al. (1957). And cf. Dan-Cohen, M., “Decision Rules and Conduct Rules — an Acoustic Separation in Criminal Law”, (1984) 97 Harv. L.R. 625, at 646–647.CrossRefGoogle Scholar

44 The Common Law (1881) 48.

45 As a mitigating circumstance, ignorance of law is recognized in the criminal codes of Eire, Yugoslavia, Greece, and others: Williams, supra n. 17, at 291. And see Feller, , “The Border between Mistakes in the Criminal and the Extra-Criminal Law”, (1974) 5 Mishpatim 508, at 555–560.Google Scholar

46 As was said, for instance, by Devlin, Lord, The Judge (1979) 40.Google Scholar

47 See my “The Immorality of Puniehment”, supra n. 7, at 295.

48 Frank, Jerome, Courts on Trial (1973) 160.Google Scholar

49 See Barak, A., Interpretation in Law (1992, in Hebrew) Vol. I, p. 632.Google Scholar

50 See, for instance, Ben-Ami v. A.C., (1964) 18(iii) P.D. 225, at 238.

51 supra n. 5.

52 Hart, H. L. A., Punishment and Responsibility (1968) 171.Google Scholar

53 For the primacy of moral over legal consciousness, cf. Kleinig, J., “Punishment and Moral Seriousness” (1991) 25 Is.L.R. 407ff.Google Scholar

54 Morris, supra n. 9, at 99, 103.

55 Freud, S., “Der Verbrecher aus Schuldbewusstsein”, in Gesammelte Schriften, vol. X, p. 312Google Scholar; Reik, Th., Myth and Guilt — The Crime and Punishment of Mankind (1967) passimGoogle Scholar; Reiwald, supra n. 6, at 149ff.; Ehrenzweig, A., Psychoanalytic Jurisprudence (1971) 218ffGoogle Scholar; et mult. al. Plato already knew that “the impulse which moves you to rob temples … is but a madness begotten in man from ancient and unexpiated crimes”: Laws IX 854.

56 Zur Genealogy der Moral (1887) II 4–6. Cf. the King James translation of “forgive us our sins” (Matthew 6:12): “forgive us our debts”.

57 Buber, supra n. 4, at 101ff.

58 Kaufmann, Walter, Without Guilt and Justice (1973) 121Google Scholar, gives examples applying especially to Jews: eating pork, masturbation.

59 Dodds, E. R., The Greeks and the Irrational (1963) 17ff., 66ff.Google Scholar Greece was, of course, the homeland of inherited guilt: Plato speaks of the “disgrace descended to everyone from his ancestors” (Theaetetus 173 D); and the poet pronounces: “Yours is the deed, nobody acquits you; but the sins of your fathers are your accomplices” (Aeschylos, , Agamemnon 1505Google Scholar).

60 Jewish and Christian doctrine is that God will not forgive any wrong done to your fellow man unless and until you have pacified him (Mishna Yoma 8:9; Matthew 6:12; Luke 11:4; and see Lachs, S. T., A Rabbinic Commentary on the New Testament (1987) 121Google Scholar), but is not in practice taken seriously either by Jews or by Christians: only exceptionally righteous people of bygone ages are reported to have always complied with this condition precedent to divine forgiveness, or the rule was in practice confined to the repayment of civil debts.

61 Even disease is nothing but punishment for sin, and no man is healed from sickness until his sins are forgiven: Nedarim 41a, Shabbat 55a; Matthew 9:2, Mark 2:5. A fortiori, graver accidents or adversities. A catalogue of ultimate misfortunes threatened by God as punishment for sinfulness is contained in Leviticus 26:14–43 and Deuteronomy 28:14–68. And all the prophets and apocalyptists described in dreadful terms the curses that would befall the people for their sine. See, e.g., Arlow, J. A., “Guilt”, in Cohen, and Mendes-Flohr, , eds., Contemporary Jewish Religious Thought (1986) 307.Google Scholar

62 A clear distinction ought to be made between genuine religious morality and resulting consciousness of sinfulness, on the one hand, and superstitious beliefs in the immediate causality of sinful misconduct of the people or of individuals, for every disaster or calamity. Such like superstitions are, and always were, widely diffused in all religions (or at the brink of religions) and have nothing to do with any moral standards.

63 Ecclestiastes 7:20.

64 Nietzsche, supra n. 14, III 250 adduces this fact as proof that there is nothing for man to feel really guilty about. But the witches' “consciousness of guilt” has in the vast majority of cases been brought about by torture. It is true that many of them persuaded themselves that their magic beliefs and superstitious practices had indeed attracted the Devil who used them for his own purposes: Hughes, P., Witchcraft (1965) 88 ff.Google Scholar

65 Morris, supra n.9, at 61 ff. He distinguishes between shame morality, which he calls “scale morality” and guilt morality (called “threshold morality”), the one focused on the failure to achieve the maximum, the other focused on the failure to achieve the minimum. And see Walter Kaufmann, supra n. 58, at 119, who distinguishes guilt from shame in that the former is “inner-directed” and the latter “outer-directed”; the former is “tied to desert”, the latter is not.

66 Dodds, supra n. 59, at 17 ff.

66a There is a talmudic dictum to the effect that sincere shame is cause enough to forgive all sins: Berakhot 12b.

67 Roche, supra n. 10, at 223.

68 See, e.g., Noyes, A. P., Modern Clinical Psychiatry (4th ed., 1966) 116 ff.Google Scholar

69 It is true that mental disorders may lead to crime; but guilt- consciousness is in those cases often sharpened.

70 A case in point is that of the criminal who earned himself the nickname of “the weeping rapist”.

71 “Takkanot HaShavim”: Gittin 55a.

72 Mommsen, supra n. 38, at 756.

73 Ta'anit 16a.

74 This is the “Concept of Restitutive Punishment”: Kittrie, and Zenoff, , Sanctions, Sentencing and Corrections (1981) 48.Google Scholar

75 Schafer, S., The Victim and his Criminal (1968) 112 ff.Google Scholar And cf. my dissent in Tsur v. State of Israel (1976) 30(ii) P.D. 589, at 598.