- 1 This process is a well-known phenomenon. For a stupendous characterisation of this relationship in (...)
1At the outset of the 19th century, the writing of the first great codes kicked off a process of far-reaching legal and social transformation. From the said coding phenomenon, legislation went from being a reflection of practices and customs to becoming a specific social tool. This phenomenon links decisively with two factors which were both institutionally and theoretically transcendental: (i) the shaping of the basic elements of the rule of law; (ii) the emergence of legal dogmatics as a discipline.1 On the one hand, legislation contributed considerably to the shaping of the modern rule of law given that, in this institutional design, the legislator becomes responsible for supplying the basic norms for the community, and, as a result, the circumstances in which the state can apply sanctions have become clearly and explicitly established. On the other hand, however, legal dogmatics in general (and criminal dogmatics in particular) has played a much more complex role. Dogmatics has always insisted on rationalising legislative decisions; in its capacity to offer greater predictability for judicial decisions based on the systematisation of law. Thus, dogmatics attempts to consolidate the ideal of certainty which characterises the rule of law. However, dogmatics claims to be the necessary intermediary between the legislator’s decisions and the justification of judicial decisions. As a result, the central practical function of legislation (i.e., the imposition of legal solutions) is affected.
- 2 Henceforth, ‘rules’ and ‘norms’ will be used as synonymous or as stylistic variations of the same i (...)
- 3 One of the central aspects of the rule of law is the adoption of the principle of legality. This pr (...)
2The central purpose of this work is precisely to show the tensions underlying the progress of legislation (as a technique of social control) and the development of dogmatics. In the case of criminal law – a field of dogmatics that we shall be analysing in this work – challenging the law generates a serious problem since, unlike other sectors of the legal order, it is here normal to admit that only an offence against legislated criminal rules constitutes sufficient justification to punish an individual.2 These rules are both the basis for the construction of a rule of law and a requirement for the implementation of the ideals expressed by this institutional design.3 Hence, insofar as dogmatics represents a challenge to the value of the law, it also increases the risk of failure in consolidating the moral ideals represented by the rule of law. Naturally, none of this claims to negate other important functions that dogmatics can fulfil, but the purpose is to point out the price we have to pay for obtaining such advantages.
3Lastly, some presuppositions and limitations of our analysis must be pointed out.
4Firstly, our thesis stresses that there are tensions between dogmatics and legislation, and that, as a consequence, there is a progressive reduction in the value of the law as a result of dogmatic reformulations. Of course, our thesis does not claim to be novel, since criticism of the role played by legal dogmatics has been as persistent as its defence. Rather, our interest lies in providing a (relatively) new argument for defending our thesis, i.e., an analytical argument based on the nature of rules and language. As Waldron points out, articulating a model of legislation that claims to be a dignified way of governing and a respectable source of law is part of an analytical theory of law.4 Thus, our main arguments are based on specific conceptual tools which have been developed in recent decades by the theory of law, but which have been largely neglected by contemporary criminal dogmatics. To be precise, we point out that the nature of rules and language makes it impossible to reach certain ideals which the rule of law claims to implement.
- 5 From amongst many works critical of the problems that these incorporations generate for the classic (...)
5Secondly, for the purposes of this work, we shall disregard extensive discussions about the way in which the relevance of supranational positive sources, transitional justice, international humanitarian justice and the so-called international criminal law has transformed the scope and force of the principle of legality. In the light of these transformations, the classical content of such a principle (i.e., legal rules as the exclusive basis of criminal punishment, the inviolability of the natural jurisdiction, prescription of criminal prosecution, etc.) has been refined over and again with the purpose of preventing criminal impunity.5 Regardless of whether or not this constitutes a suitable way of tackling these problems, we shall not analyse here the extent to which this involves a challenge to the relevance of legislation.
- 6 See Dworkin 1986: 9-32, Scalia 1989: 1175-1188.
- 7 On Dworkin’s influence on the shaping of neoconstitutionalist theories, see Rodilla 2009: 9-53, and (...)
6Thirdly, and in close connection with the above presupposition, we shall also disregard the intense debate about the relevance of moral principles and their incorporation into our legal systems.6 In particular, we do not deal here with so-called ‘neoconstitutionalist’ theories.7 The reason for this is that the role that this theoretical movement has played in the consolidation of the rule of law is not yet altogether clear. For example, in a recent book of his, Atria (2016: 27-28) writes:
Neoconstitutionalism constitutes /…/ an involution to pre-modern legal forms which, in current circumstances, means the dissolution of the law. What is required to resist it is a theory that... understands legislation as the most complete manifestation of law[.]
- 8 On this matter, see Atienza and Ruiz Manero 2000: 25-27.
7 In other words, even though we admit the existence of the role played by principles in the law, it could very well be that, on account of the very question of principles, criminal law would have to be shaped exclusively on clear and precise laws with a view to avoiding the manner in which behaviours were regulated in pre-modern criminal law.8
- 9 See Hart 1994: 175-178.
8As MacCormick (1978: 57 and ff) points out, in the modern state, legislation is, par excellence, a process by means of which valid norms are produced, that is to say, norms which citizens must abide by and which judges must use to justify their decisions. For legislation to comply with its function and establish a basic normative framework (i.e., the ‘rules of the game’ of a particular community), it is fundamental for such rules to possess authority and it is customary to assume that this normative feature derives from the legislator’s political authority. The legislator’s authority, meanwhile, manifests itself in its capacity to voluntarily change the deontic status of actions. Unlike the moral dimension, one of the characteristic features of the law is precisely that its norms may be modified deliberately by authorities. In short, the legislator, in saying that something is obligatory or allowed, alters the normative status of behaviours.9
9However, it is a well-known fact that the legislator’s authority is often called into question. One of the challenges that this authority faces emerges from legal dogmatics. For example, almost a year after one of the first great codes was published in 1805, the French Civil Code, Jacques de Maleville published one of the first commentaries on this normative text. It is commonplace to add that Napoleon, upon having learnt of this, exclaimed that his Code was lost. This anecdote illustrates well the general idea underlying this work: there exists a tension between the legislator’s authority and that of the legal science, between political will and scientific knowledge, between legislation and dogmatics.
10It is a truism to point out that, throughout the centuries, dogmatics has consolidated its prestige and decisively influenced the way in which jurisprudence has evolved. The legislator’s role and fitness to regulate social life by means of expressly formulated norms has, in turn, suffered a series of crises and, in consequence, the authority of legislation has been eroded. On occasion, distrust would arise from disillusion. The naive and excessive trust placed in the capacity of legislation to find solutions to social problems by formulating general, abstract norms has led to a legislative inflation of sorts, which has, in turn, often led to results opposite from those sought. As Bulygin (1991: 411) says:
It is by no means obvious that an anticipated solution to problems by means of general norms is preferable, that is, always preferable to the particular decision, even though the decision is not based on an existing general norm, but on considerations of equity and justice. What is at the root of this dilemma is a confrontation between the values of legal certainty on one hand and justice on the other. The important thing is to realize that we are dealing with an important value problem and not to proceed blindly as though there were no problem whatsoever.
11The disrepute suffered by legislation would often arise from the carelessness and opportunism with which many relevant social issues were legislated upon. The result of such reprehensible political attitudes can often be evidenced with the confusion of its formulation, the incoherence of its purposes and the inefficiency of its practice. In truth, there are legislative sectors which are impenetrable not only for common citizens, but also for judges and law specialists. For example, Ferrajoli (1995: 10) states:
Indeed, legislative inflation, which largely coincides with criminal inflation, is at the root of a growing lack of certainty, obscurity, and difficulty in knowing the law which favours an addiction to a vague illegalism, inevitable at times in this context, eroding the credibility and efficacy of criminal action, thus becoming a hotbed of corruption and arbitrariness.
- 10 For a greater scope on these ideas, see different essays by Joseph Raz, such as, e.g., Raz 1979 and (...)
12However, irrespective of the legislator’s naivety and the arbitrariness of many of its projects, the value of the (formal) law as a rational instrument for social control falls under threat of the ongoing revision and reformulation of laws undertaken by dogmatics. To understand the reaches of the challenge posed by dogmatics to the authority of the legislator, it is convenient to highlight three intrinsically related ideas. Firstly, the explanation of the nature of authority is intrinsically connected to the explanation of the nature of law, and this ultimately means that the types of reasons for action that the authority generates must be accounted for through their decisions.10 Secondly, the legislator’s authority represents an instrumental value, in the sense that a legitimate authority’s decisions reflect a balance of morally adequate reasons. The function of these authorities is to identify the best solutions available for a particular practical problem and to, by means of their general, abstract norms, stipulate which reasons judges and individuals should follow so as to behave correctly. The legitimate authority lends a service to community members, fulfilling the role of an intermediary between ordinary moral reasons (which the authority assesses and offsets) and the decisions made by judges and individuals. Lastly, the legislator exercises its authority by effectively rendering this service. The legislator’s decisions have authority (or better yet, we recognise their authority) when they exclude the formation of a balance of reasons that indicate what has to be done. For this function to be fulfilled, the decisions must accurately express which behaviours are compulsory, which are forbidden and which allowed. While such norms remain vague (or contain moral concepts whose application is open to debate, or whose formulation is ambiguous, etc.), the addressees thereof shall have no option but to reopen the balance of reasons, and hence legislation fails to render the service that legitimises its authority.
13The challenge launched by dogmatics concerning the legislator’s role often begins with a vindication of the role of the interpreter as an indispensable complement to the task of the author. Beyond what might be the legislator’s greater or lesser expertise, dogmatics insists on the inevitability of the interpretation of laws. In this regard, Bacigalupo (1999: 21) points out that, irrespective of the clarity of a normative text, ‘the criminal dogmatic finds himself faced with the need to decide in favour of one or another interpretation of positive criminal law, unable to infer it from legal texts’. This means that there is an inevitable interpretative gap between the law and its application, between the scope of norms and the cases that they regulate. As a result, the mechanisms for rationally bridging this gap are no longer to be found in the law itself, and so judges have to resort to an alternative discourse (i.e., dogmatics) to overcome these indeterminacies. The insistence of dogmatics on its essential role in translating the legislator’s language, its ongoing criticism of the normative system currently in force, its vocation for contributing to the justification of legal decisions, its concern for deriving norms and solutions from categories independent of the norms formulated by the legislator all involve inevitable scepticism regarding the role that legislation can fulfil – even good laws. In sum, the justification of dogmatics of its task implies, to a greater or lesser extent, a depreciation of the (legislated) law.
- 11 The literature on legal dogmatics is virtually boundless. Such authors as Carlos Nino, Aaulis Aarni (...)
- 12 See, also, Rüthers 2007: 321 and ff.
14In a broad sense, dogmatics covers different activities.11 These tasks could, strictly speaking, be claimed to amount to independent ‘dogmatics’. However, they are normally understood to be part of the same discipline. Roxin (1997: § 7 nm. 1), perhaps its best contemporary exponent, summarises these tasks as follows:12
Criminal dogmatics is a discipline dedicated to interpreting, systematizing and developing legal provisions and the opinions of scientific doctrine in the field of Criminal Law.
- 13 See, for example, Schünemann 2008: 9.
- 14 See Roxin 1997: § 7 nm. 1.
- 15 Schünemann 2008: 3-5.
15In a slightly different sense, dogmatics refers only to the theory of crime.13 It deals only with ‘the general presuppositions of punishable actions’ and, in this case, its central categories of analysis are actus reus, mens rea, (a lack of) justification, and culpability.14 It is mainly doctrinarians of the German tradition that have stood out in this field of intellectual work, and it is here that the criminal academia finds its highest prestige. One of the main tools of this dogmatics is the idea of ‘system’ understood to be ‘the logical order of the elements of crime and, along with this, [of] the presuppositions of legally regulated punishability’.15
- 16 In this work, it becomes inevitable to present dogmatics in a simplified manner, and we shall insis (...)
16Irrespective of whether it is understood in a broad sense (which attempts to include any interpretative or systematising activity) or in a more restricted sense (which includes only the theory of crime) dogmatics is highly useful for judges. In general, this claim rests on the idea that the legislator’s message must be completed by a dogmatic interpretation, which then assumes an indispensable role as an intermediary between the law and the judicial decision. The observations hereinafter refer, above all, to doctrines of punishable facts, as it is there that the claims of dogmatics can, in this regard, be seen most clearly, as well as its weaknesses.16
17Setting aside the many historical subtleties and complexities in the development of criminal dogmatics, it is interesting to contrast two of its great conceptions, one of which can be called the classical conception and the other the contemporary conception. Both conceptions claim a specific scientific status for their conceptual developments, but their objectives and methodologies differ significantly.
18For the classical conception, the task of dogmatics is mainly descriptive and it focuses on the law as it actually is, and this requires a systematic interpretation and exposure of the norms formulated by the criminal legislator. This task is, in turn, conceptually different from an analysis of what the ideal of a particular criminal system should be. On the other hand, the contemporary conception assumes that the legislator’s decisions do not exhaust the relevant content of what criminal law provides for, and that dogmatics fulfils an indispensable regulatory function in identifying norms and solutions that can be invoked – irrespective of whether or not they have been collected by the criminal legislator – to justify decisions.
19For the classical conception, the basis of scientific knowledge of criminal law is the existence of criminal norms – and their correlative duties and obligations – which can be identified objectively and neutrally. Alternatively, the basis of dogmatic statements would be no more than each jurist’s point of view, subjective attitude and personal preference. The relevance of any dogmatic contribution is guaranteed by its theoretical authority, by its search for truth based on its scientific capacity. Following this methodological course, classical dogmatics accepts that the truth of its statements constitutes a decisive criterion for the assessment of the correctness or wrongness of a particular theoretical reconstruction. But this conceptual commitment faces an immediate challenge: which facts determine the truth of a statement regarding what the law provides? A simple answer might be that the truth value of legal statements depends exclusively on the existence of norms formulated by the legislator. Consequently, in this classical approach, statements referring to criminal duties are true or false based on whether the legislator has expressly or implicitly formulated a norm in the criminal system of a certain community imposing such duties.
20Although we have called this perspective classical dogmatics, it would be a mistake to believe that it no longer has a function today or that there is no room for it in the future of criminal dogmatics. As Roxin (2008: 362) claims:
In the future, the science of criminal law will also be charged with the fundamental task of systematizing, interpreting and developing the national Law currently in force, that is, criminal legal dogmatics in its classical sense.
21Naturally, classical dogmatics does not always agree with the norms formulated by the authority, and often suggests reforms and modifications, but such critical tasks are not considered to be part of the scientific dimension of the discipline. Rather, this critical aspect of dogmatics is conceptually secondary to the task of identifying and systematising a positive order, given that it is only once the solutions offered by the law for a certain problem have been derived is it possible to determine whether they are correct or need modifying.
22Other perspectives have been developed in response to this way of understanding this approach to criminal dogmatics, stressing the normative and critical aspects of the dogmatic task. Beyond the important and specific differences between these alternative approaches, there is one outstanding characteristic which somehow confers a family resemblance to all these proposals and shapes what we shall call, for the sake of simplicity, the contemporary conception of criminal dogmatics. This family resemblance is given by the conviction that the nature of dogmatic proposals is normative and that their function is to rationally control judicial decisions. In other words, the explicit acceptance of the fact that both the critical and normative tasks are a legitimately genuine part of dogmatic work.
23This feature of the contemporary conception may be briefly characterised as follows. Dogmatic theories are rarely limited to a neutral exposure of what the legislator prescribes. Rather, they enjoin interpretation criteria, they build normative hierarchies and demarcate concepts. Dogmatics has a ‘practical vocation’, so to speak, which is visible in the way in which it demands the contribution of just and socially appropriate solutions to normative problems. As Roxin (1992: 63) points out, ‘criminal dogmatics is not a mental game alien to life, it is a praxis-oriented science to ensure that society remains free and safe’.
- 17 See, for example, Silva Sánchez 1992: 44. Authors stressing this connection between dogmatics, cert (...)
24This dogmatic perspective proposes correctness criteria for both the norms of the criminal legislator and judicial decisions. These criteria claim to justify the responses to the various normative problems and offer a rational basis for solutions of social problems. For this, the development of dogmatics is often said to be indispensable for reducing arbitrariness and guaranteeing impartiality when interpreting and applying the law.17 A natural consequence of this approach to the nature and function of dogmatics is the conviction that greater dogmatic development has beneficial practical effects which contribute to the rational solution of our normative problems. According to Silvia Sánchez (1992: 44), this would be the ‘true mission’ of dogmatics:
It is thus true to say that we have a characterization of dogmatics which brings us closer to its true mission: to add to the wording of the law further statements that are used in the substantiation of decisions along with the law itself.
25‘Dogmatic norms’ – norms formulated by dogmatics which are complementary or alternative to the norms proposed by the legislator – accurately determine relevant factual situations and their normative consequences, thus limiting the discretion of law-enforcing agencies. The ensuing consequence is that the law (criminal law in particular) loses its exclusivity in justifying judicial decisions since, along with it, dogmatic norms emerge offering novel bases (i.e., bases different from those originally laid down in the law) for judicial decisions.
26If this characterisation is admitted, then it is also necessary to accept that the ‘practical vocation’ of dogmatics is linked to the justification of judicial decisions. There are, of course, different senses in which it can be said that criminal dogmatics claims to provide a ‘better justification’ (or ‘good results’) of judicial decisions. In order to avoid any misunderstanding, it is convenient to distinguish between the following issues.
- 18 Continuing on, Gimbernat Ordeig (1990: 158) adds: ‘If the limits of a criminal category are not kno (...)
27(1) Firstly, ‘good results’ may mean that the development of dogmatics leads judicial solutions to be foreseeable. Perhaps it is Gimbernat Ordeig (1990: 158) who best summarises this claim in stating the following:18
Pointing out limits and defining concepts... ensures the safe and calculable application of criminal law, making it possible to reduce irrationality, arbitrariness and improvisation. The less developed dogmatics is, the more unpredictable court rulings will be, and the more condemnation and absolution shall be determined by randomness and uncontrollable factors.
- 19 See, for example, Welzel 1997: 1. See, also, Roxin 1997: § 7 nm. 1, and Silva Sánchez 1992: 47-50.
28This belief, broadly held in dogmatics,19 involves both a normative thesis and an empirical thesis. The normative thesis states that it is a good thing for solutions of judicial authorities to be predictable. The reason why the idea of predictability plays an important role in law is pretty obvious. It allows individuals to predict the consequences of their actions and organise themselves accordingly, knowing what to expect from judges. Dogmatics would, thus, contribute to perfecting the principle of legality, so long as it is understood that seeking certainty and predictability is one of the functions of this principle.
- 20 Thus, Gimbernat Ordeig 1990: 158. He mentions there that, by reading German manuals, one knows what (...)
29The empirical thesis, meanwhile, assumes that dogmatics does indeed bring with it more predictable judicial solutions. This can be based on a quasi-global analysis, according to which it can be said that it is true that judicial decisions are more predictable in countries where dogmatics is applied,20 or on a more regional analysis, which states that, for example, the decisions of Argentinian authorities are more predictable because the dogmatic method is used in Argentina or even that judges who make use of dogmatics are more predictable judges. A hypothetical statement also fits in cases in which this does not happen, regardless of whether on a global or regional level. According to this statement, judicial decisions would be more predictable if the dogmatic method was resorted to, but this presupposition is rarely put to the test to be empirically corroborated.
- 21 See Roxin 2000: 49 and ff., and Bacigalupo 1995: 62.
- 22 On this matter, see Bacigalupo 1995: 62.
30(2) Secondly, the dogmatic contribution to justifying judicial decisions can be understood from a value perspective, above all from the explanation of the teleological orientation of dogmatics. In this sense, dogmatics would be a continuation of ‘criminal policy’.21 Some authors seem to identify ‘criminal policy’ with consequentialist justifications of punishment,22 although, strictly speaking, there is nothing in this expression that prevents the inclusion of deontological arguments, particularly those relating to the limits of the use of the criminal justice system. The following statement by Schünemann (2008: 10) points to the first class of reasons:
[A]s the primary purpose of criminal law is the protection of legal goods by means of general prevention, the presuppositions of punishability that make up the criminal system may be derived by a reduction of means to ends.
- 23 See Silva Sánchez 1992: 70 and ff. See, also, Roxin (2000: 58–61) who specifies the function of pro (...)
31In this sense, dogmatics, and specifically the theory of crime, is a construct conceived according to its usefulness for (contributing to) the prevention of the commission of crime. On the other hand, the principle of culpability is, in turn, used in its deontological orientation, according to which moral responsibility must be a condition of criminal responsibility.23
- 24 It is common to add that this distinction took much longer to develop where there has been no crimi (...)
32Ultimately, it is all about finding the correct solution, using the support provided by certain premises of criminal policy. Dogmatics may have, in this respect, helped to ensure better results by highlighting, for example, the value difference between causes of justification and excuses.24
- 25 However, it must be made quite clear that this is not about assessing the consistency of dogmatics, (...)
33(3) Lastly, dogmatics contributes to the justification of decisions by reconstructing the juridical material into a system. According to Roxin (1997: § 7 nm. 2), the existence of a system, of ‘a whole organized on principles’, makes ‘the internal connection of specific dogma simultaneously visible’. Two legal solutions are coherent insofar as both resolve the same generic case in the same way (legal consistency) or if they resolve two different generic cases using the same normative grounds in the same sense (criminal policy consistency). In all cases, the idea is to make it possible to determine whether a certain theoretical construct (finalism, for example) incurs contradictions. The dogmatic method, and especially its systematic aspiration, would make it possible to assess this swiftly.25
34The idea of a system would also make it possible to notice at a glance how the general structure can be affected by alterations made to a single piece. For example, if we admit that an attempted act of crime should receive a penalty smaller than a committed act of crime assuming that the former is an unfinished attempt, then participation in an attempted act should receive a penalty smaller than participation in a committed act of crime, but only for an attempt which is incomplete. A change for the author means a change for the participant insofar as the reason grounding the act applies to both.
- 26 For a summary of some of these criticisms, see Minor Salas 2006: 259-276.
35These are the main justification strategies of contemporary dogmatics. In the face of the inevitable indeterminacy and imperfection of criminal law, dogmatics takes on the role of a protagonist, the role of the necessary interpreter for judges to offer ‘good solutions’ and for criminal law to be a rational instrument of social control. Of course, the development of dogmatics and its optimistic vision of the role that it can play in the rational control of criminally relevant decisions have come in for much criticism.26 On occasion, sceptical views of dogmatics point to its conceptual aridness, to its scarce capacity to transcend its own arguments and have a bearing on social phenomena or its lack of legitimacy to add new solutions that complement or substitute the norms of the legislator. In contrast to such sceptical approaches to dogmatics, we shall explore a different argument. We plan to review the way in which dogmatics provides – explicitly or implicitly – new solutions, from which it follows that the development of dogmatics would compete with the actual realisation of the values underlying the rule of law.
- 27 There is much literature that explores the relationships between legality, the rule of law and the (...)
36Under the rule of law, the authorities must communicate clearly to individual citizens which behaviours correlate with (which) criminal sanctions.27 For this communication to be possible, the authorities and the addressees must share a particular language, otherwise it would be impossible to abide by such directives. It would be pointless for the legislator to formulate general norms in a private language, one which is unknown to members of a community. It is only when individuals understand what the law demands from them that it is possible for them to act in accordance with the law or to be responsible for their disobedience. It is this notion that shapes the different versions of the principle of criminal culpability. Thus, according to Jakobs (1996: 19),
only those who are willing to obey orders, who are capable of recognizing that the order is directed at them and are also able to know what has to be done to fulfil the order, can actually comply with an order.
37This is why ordinary language is the common and natural basis for the formulation of criminal norms, other norms of a legal order included. The words of natural languages obtain their meanings from social conventions, and their specificity is always limited. This means that a certain margin of indeterminacy is inevitable and that, in some cases, we cannot determine in advance whether the rule or convention that governs the concept demands or discards its application. Given such syntactical and semantic indeterminacy (e.g., vague concepts, ambiguous terms, value concepts, etc.), a complete and accurate regulation of all the circumstances in which the state can apply criminal sanctions becomes impossible.
38These characteristics of legislated rules, i.e., their relative indeterminacy, expose the limitation not only of the accuracy of laws, but also of the requirements imposed by the rule of law. In particular, (i) the requirement of the formulation of norms in ordinary language shared by authorities and addressees alike, (ii) the requirement of clear and precise norms, and (iii) the requirement of the communication of these norms to the addressees are jointly incompatible. Insofar as norms are communicated by the legislator using common vocabulary – i.e., ordinary language – they will lack precision, while, on the other hand, the more precise laws are, the more they will have to be worded in a language different from the shared one, which will make laws more difficult to be communicated to their addressees.
39This tension is of a conceptual nature and does not depend on the legislator’s greater or lesser expertise. In the light of this relationship between law and language, there is no escape from the dilemma of needing to preserve the certainty and clarity of rules along with the need for them to be communicated to their addressees. There are different strategies to mitigate the impact of this dilemma, such as, for example, developing interpretative rules that make it possible to define and control the way in which rules are applied. But, insofar as these interpretative rules are also formulated in a particular language, they cannot guarantee a clear solution to all controversies.
40This is where the attractiveness of the task of dogmatics becomes evident. Its contribution allows for a systematic exposure of the defects of the law, as well as for ways of drawing up different solutions to these deficiencies. This is why dogmatics claims its performance to be not only convenient, but also necessary, since, in search of clarity and certainty in justifying solutions, the law and traditional interpretative resources prove to be insufficient. The way to overcome these legislative deficiencies would be by means of the help provided by legal science (i.e., dogmatics) to both officials and citizens.
41However, this intervention of dogmatics poses a problem for the ideal of the rule of law, since the redrafting of legislative material results in the formulation of norms similar to those proposed by the legal legislator. Given that the principle of legality does not allow for the punishment of citizens for an offence of norms analogous to those formulated by the legislator, it is, accordingly, not easy to understand what grants legitimacy to the application of sanctions for offences similar to those formulated by the legislator.
42Dogmatics formulating a series of guidelines, norms and definitions for judges to apply legal norms rationally and impartially is one way in which dogmatics fulfils its function as a necessary intermediary. For example, let us be reminded that, according to Silvia Sánchez (1992: 49), the true function of dogmatics is to ‘provide the judge with criteria to determine which cases are the same and which are different, and to adopt a suitable treatment for each one’. This task of establishing similarities and analogies is fulfilled by the enunciation and application of semantic rules that reconstruct the meanings of the legislator’s expressions. The task of dogmatics aims to determine when a certain event can be classified in a manner which is criminally relevant, i.e., when a certain X also counts as a Z.
43To illustrate this idea, we can analyse how a legislative definition functions, e.g., the definition of ‘violence’ in the Argentinian Criminal Code, according to which violence includes the use of hypnotics and narcotics. This definition broadens the meaning that this word has in ordinary language, and thus different events, such as the use of physical force and hypnosis, are grouped into a common class. By means of legal definitions, legislators indicate that they are deviating from the ordinary use of words, and the sense that they attribute to particular terms. In general, dogmatics operates similarly. This is why, for Gimbernat Ordeig (1999: 36-38), a large part of the task of dogmatics is to offer judges clear and precise answers to questions such as:
What does ‘voluntary’ in Article 1 of the Criminal Code mean? Is it to be interpreted as malicious, or as will in a neutral sense, or as culpability, or as will referring to – opposite to – the norm? Has a subject who is, on his way to breaking into a house, caught just as he lays the ladder against the wall to enter through the window, begun the execution of the wrongful act – for which he should be punished for attempted robbery – or not – for which he should be acquitted? When does night time start and end, that is: what kind of darkness is required for it to become an aggravating circumstance? Does the participant who provides a murderer with hemlock cooperate towards an act without which the crime would not have been committed? What happens to the person who believes it is necessary to break down a door to put out a fire, and it then turns out there was no fire in the room into which he entered violently, but rather that lamb was being grilled? Could he be excused from the damages by claiming a state of necessity? Is spraying a person with gasoline and setting fire to the person to be considered murder by arson? Is taking a bag of sugar from a supermarket and hiding it at the checkout to be considered larceny or fraud? What differentiates larceny from wrongful appropriation?
44Pursuant to this reconstruction, dogmatic developments often become interpretative specifications of the language that the legislator has chosen in formulating the criminal law. At the very least, all the questions that Gimbernat Ordeig mentions seem to boil down to specifications of when ‘something’ (e.g., a photograph) counts as something else (e.g., a document), and the traditional way of responding to such questions is by defining corresponding concepts.
45Irrespective of the reasons and values guiding dogmatics in the task of defining terms, the aim of its activities is to offer a definition, that is to say, a semantic rule that indicates specifically how the wording of the law is to be understood. It is these rules that serve as criteria for similarities and differences, and provide judges with the tools that make it possible to deal with similar cases in the same way. Of course, it is necessary to stress that similarities are determined by these rules, at least in the sense that, if they did not exist as criteria for comparison and classification, we would have no grounds on which to group events which are individually different within the same class.
46These definitions generally fall into two types: lexicographical and stipulative. As for the former, the definition is limited to mentioning the manner in which words are used in a community. A lexicographical definition is information about the usage rules in effect within a certain group. On the other hand, a stipulative definition is normally an expansion or contraction of the ordinary meaning of terms. It does not deal so much with information about the current usage of terms, but rather with a decision on how certain expressions are to be understood. For example, let us assume that we are attempting to determine when a particular act can be considered to be abandonment within the realm of attempted acts. The different doctrines of what it is that defines abandonment are relevant because there is no definition of the concept in the vocabulary used by the legislator and because the concept is notoriously vague in the way it is used in everyday language. A dogmatic development of abandonment claiming to overcome the problem will, therefore, have to put forward a proposal that resolves the indeterminacy produced by everyday language. Consequently, the term ‘abandonment’, which has a vague meaning S1 in everyday language, will gain another, more precise meaning S2 in the dogmatic vocabulary.
47The importance of these changes in meaning is often hidden by the ambiguity of the word ‘norm’, whose everyday meaning refers both to texts approved by the legislator and to meanings thereof. From the theoretical point of view, it is convenient to restrict the concept of norm to the meaning of normative texts, since the main function of a norm is to motivate behaviour, and this fitness to motivate depends on the meaning of an expression. Insofar as citizens are unable to understand the meaning of the authority’s words, they cannot be motivated by the representation of the norm, and attributing responsibility would infringe on the principle of culpability.
48In this regard, Alchourrón and Bulygin (1991: 442) point out:
It is a necessary condition for the meaning of a statement that expresses a norm to be understood by its addressee for the norm to fulfil the role assigned to it by the legislator: that of motivating certain social behaviour. If the addressee fails to understand this meaning, she cannot be motivated by the norm and cannot obey or apply it; moreover, if, for any other reason, she should indeed behave as required by the norm, there is no reason to talk of obedience, but at most about mere coincidence between the prescribed behaviour and what actually occurs.
49If the task of dogmatics is to refine the meaning of normative texts by explicitly drafting new semantic rules, this task will result in a more or less arbitrary selection of norms which can be correlated with the same text formulated by the legislator. Thus, dogmatics specifies the conditions of use for concepts that do not coincide with the original proposal of the authority. On this matter, Carrió (1994: 92) writes:
If the word is vague, any definition that attempts to faithfully capture its usage rules in effect shall necessarily capture the inaccuracy of the word defined. If for some particular reason we wish to imbue a word with a precision it does not have, we are then doing something different from what we do when we limit ourselves to capturing the meaning the word has according to current linguistic usage. We are now stipulating a meaning, legislating a new usage rule with a circumscribed application, if we can put it thus.
50Therefore, dogmatic intervention, insofar as it claims to provide criminal law with a precision it does not possess, involves a partial change in the norm expressed by the law. Naturally, this change is normally done by stealth, merely indicating that it is a new interpretation of a normative text. As Alchourrón and Bulygin (1991: 444-445) point out,
51judges often modify norms, particularly when applying them would lead to manifestly unjust or undesirable results, for example, after changes in economic, political or social circumstances. But they do so covertly, attempting to hide it, claiming that it is just another interpretation of the same norm. Thus, under the guise of leaving the text unchanged, they attempt to disguise the change in the norm. But if the meaning of the text depends on an interpretation, another interpretation has another meaning, and if the meaning of the text has changed, then the norm has been modified.
- 28 On occasion, such dogmatic reinterpretations are specifications that reduce the scope of a criminal (...)
52The new norm obtained with the help of dogmatic definitions may be similar to the norm that the legislator’s formulation expressed initially, but it is nonetheless a different norm. This is why the application of this dogmatic norm by judges amounts to an analogical application of the criminal law. An analogical application of the law is one of the classical and recurrent topics in the theory of law, and this is hardly the place to treat it systematically. We shall only point out that, if the prohibition of analogical application is one of the requirements of the principle of legality, then contemporary dogmatics – and the legislator, too – is faced with irreconcilable commitments: complementing the normative information supplied by the legislator and abstaining from altering the legislative mandates with norms that are analogous to those expressed by the law.28
53In truth, in contemporary legal orders, the prohibition of analogy would only seem to apply to modifications in a normative sense, which have not been validated by the dogmatic development, but which, once validated by dogmatics, are no longer analogous expressions and become part of the meaning of the law already possessed. Hassemer’s statement (1995: 30-31) is illustrative in this respect:
Criminal dogmatics, jointly developed with jurisprudence and the science upholding it, has gradually been chiselling the concepts of ‘damage to assets’ in fraud, ‘violence’ in robbery, coercion or rape, and in all cases, they have been worked in such a way as to know what there is to be discussed, which way the discussion is going at that moment, and which side the strongest forces are on. No small feat.
Yet it is not enough. Anyone not being defended or receiving counsel from a professional criminal jurist is often utterly unable to predict what is in store for him or her. The Criminal Code – precisely because of such carving and paraphrasing from criminal dogmatics – is not a reliable source, and the commentaries are neither comprehensible nor accessible to the layperson. However, in some particular cases, not even the expert is able to forecast reliably what the court will determine.
54This paragraph clearly reveals the relationship that exists between the development of dogmatics and the progressive wear and tear suffered by the value of the law. Hassemer’s claim is that, ʻprecisely because of such carving and paraphrasing by criminal dogmaticsʼ, the Criminal Code no longer provides reliable information about what to do or what not to do. The conjecture resulting from this thesis is quite simple: Would the Criminal Code be a more reliable source of knowing what is to be done if dogmatics were to abstain from expanding and contracting the meaning of the wording of the law? In this section, we have put forward some arguments in favour of an affirmative response to this question, and it is convenient to insist on the main idea: if dogmatics focuses on revising the meaning of legal texts, then dogmatic proposals will always go beyond what the legislator says. However, by going further than what the legislator says, dogmatic norms appear to be alternatives to the solutions offered by the law. Regardless of how similar these dogmatic proposals are to the norms laid down by the criminal law, they are still analogous to the norms formulated by the legislator. This is why the greater the attachment to the following of dogmatic interpretative proposals, the less recognition the autonomous value of the word of the law will be given.
- 29 Endicott 2000: 187.
- 30 About the different notions of the rule of law, see Raz 1979: 210-229.
55Much like legislation, dogmatics must also provide judges with clear guidelines to help them make the right decision, thus helping to identify what they consider to be arbitrary or erroneous decisions. Only under this assumption does dogmatics help to make more rational (which, in this context, means: more predictable) decisions. The problem stems from a conceptual tension: the difficulty lies in the fact that the search for precision can limit the discretion of law-enforcing agencies, while precision introduces distinctions which broaden the ‘conceptual distance’ between the demands of the law and the substantive reasons that justify it.29 In the first case, the problem arises from the indeterminacy caused by vague rules, exemplified by different solutions offered by courts for similar cases. This form of indeterminacy can be called ‘discretion’. In the second case, the problem consists in the fact that, in applying precise rules, officials depart from the reasons that ground such rules. With a view to avoiding such confusion, this situation can be called ‘unreasonableness’. The search for precision, therefore, appears to lead to a dilemma: either the unreasonableness of rules is increased through precise provisions or discretion is increased by applying the law using vague rules. In either of these two senses, dogmatic proposals appear to take us ever further from the ideals that define the rule of law.30
- 31 There are different proposals that explain the institutional force of legal rules, although all of (...)
56To reduce the arbitrariness of legal decisions, it is first necessary to define, in a general and abstract manner, the assumptions linked to the attribution of responsibility, and, in attempting to do so, it is indispensable to formulate semantic rules and behaviour rules. Only after the normative force of these rules has been assumed is it worth making an effort to achieve precision.31 This normative capacity of rules is what makes it possible for individuals to design and develop life plans in accordance with the law, as it would hardly be sensible to draw up life plans based on what the rules indicate if judges (and other officials) were free to ignore them. Similarly, it makes little sense for the legislator to take the trouble to specify crimes and penalties with painstaking precision if law-enforcement agencies were not strictly obliged to apply such laws. If, instead of rules, only good (or bad) advice was offered regarding the justification of these decisions, we would still not have sufficient support to predict the manner in which the law would be applied. After all, a recommendation is merely one further reason for a decision, but it does not necessarily represent grounds for a decision. On the contrary, rules control decisions in the following sense: they offer a reason for one particular decision and exclude other justifications for the behaviour. Rules are not one more reason that judges have to incorporate into the balance of reasons; rather, they are the reason for dispensing with the balance altogether. The only way in which rules can fulfil this function is by indicating guidelines for behaviours and decisions that can be followed without reopening the balance of reasons and justifications.
- 32 See Schauer 1991: 53 and ff.
57A vague formulation cannot act as a rule because its indeterminacy requires that the balance of reasons be reopened to identify its scope and relevance. Only precise formulations can be imposed as rules in the context of decisions. If, in turn, we admit that the rationality (predictability) of legal decisions depends on the precision of the rules in force within a particular community, it follows that both legislation and dogmatics have to propose rules. But any rule – regardless of whether it is formulated by a theorist or an authority – will be deficient in resolving several sets of recalcitrant cases. These recalcitrant cases occur because the precision of the rules demands a specification of reasons that underlie and justify the rule.32 The price to be paid for (greater) precision is the progressive distance between its justification and the multiplication of recalcitrant cases. In such cases, the rules and their justifications do not coincide and, in contrast to what happens in normal cases, rational solutions become fragmented. In other words, in recalcitrant cases, precise rules are no longer good reasons for a decision, and their application must be justified in an alternative manner.
58This ‘conceptual distance’ between rules and their justifications is inevitable and, as a result, insofar as dogmatics claims to guarantee certainty and rationality, its proposals will be defective to a greater or lesser degree. Ultimately, it is not a question of how developed dogmatics is, but a question of the nature of rules. If dogmatics claims to contribute to the rationality of decisions, then it must formulate precise rules. Meanwhile, these rules generate a series of recalcitrant cases that require these very same rules to be dispensed with, and the decisions to be justified in an alternative manner.
59The challenge of dogmatics is to show that its contribution to the rationality of legal decisions is not just a noble dream. To do so, it must show how its proposals exceed the legislator’s, why its norms can be successful where the legislator’s inevitably fail. The arguments we have considered herein cast doubt on the capacity of dogmatics to exceed the limits that result from the nature of language and the nature of rules. Moreover, these limits also help to observe the indeterminacy of the law from a different perspective.
- 33 On the unreasonableness of these limits, see Gimbernat Ordeig 1990: 260.
60As we have seen, the claim for a greater development of dogmatics has resulted from the imperfection and indeterminacy of the law. The idea was not only that the legislator formulated defective norms, but also that these norms would inevitably be deficient. However, we now see how this indeterminacy of the law, which makes way for greater discretion, also serves to prevent unreasonable decisions. Thus, precision imposes an inevitable conceptual distance between rules and their underlying reasons. This does not mean that we have to dispense with precision, as there are still other good reasons for regulating social situations by means of specific limits. These reasons tilt the scales in favour of the price paid for recalcitrant cases. For example, although it might seem unreasonable to impose a specific age limit on a victim, e.g., the age of 12, to determine whether there was rape, it might be that, in this case, other moral considerations justify these specifications.33 Yet, could it be that we always have better reasons to be precise than to regulate behaviour vaguely?
61The answer is no. A good argument for this answer is given by Ferreres (2002:157-158):
It is indeed possible for the judge to have a certain interpretive margin to offset a series of relevant factors in deciding each case. Precedents can serve to determine these factors with greater clarity, something the law may not clarify. Yet this should not override the legislator’s casuistic intentions towards each judge. Thus, if one rule fixes a penalty of three to five years, it would be absurd for the Supreme Court to establish the penalty at exactly four years ‘in order to increase the precision of the law’. This would circumscribe the law beyond the legislator’s wishes. Analogously, if, for example, the legislator chose to harden the law on fraud when the victim suffers ‘grave damage to property’ on account of the amount of the swindle, it would be incorrect for the Supreme Court to establish a particular amount (say 10,000 euros) to define the concept of ‘grave damage to property’. The legislator’s wish was for the judge to determine this concept according to the circumstances of each particular case, and not by means of a rigid rule.
- 34 See Hart 1994: 130-134.
62Although, on occasion, there are good reasons to be precise, the law is inevitably vague. Our relative lack of knowledge of the future prevents us from deciding on different circumstances that might occur and it is convenient for such unpredictable cases to be resolved by a new decision. This is why, as Hart claims, any legal system combines rules that individuals can apply of their own accord with other normative guidelines, e.g., variable normative principles and standards, which require new official decisions to determine the correct solution for individual cases.34 Thus, the fluctuation between precision and reasons is inescapable, and there will always be situations in which the need to reduce precision prevails with a view to reaching a reasonable regulation of social relations.
63The search for a balance between the certainty offered by rules and an adaptation to reasons providing principles is an important task and, as Hart (1994: 130) reminds us,
all systems, in different ways, compromise between two social needs: the need for certain rules which can, over great areas of conduct, safely be applied by private individuals to themselves without fresh official guidance or weighing up of social issues, and the need to leave open, for later settlement by an informed, official choice, issues which can only be properly appreciated and settled when they arise in a concrete case.
64As does the legislator, dogmatics too employs both techniques. On occasion, it formulates new rules which are added to, or which complement and possibly substitute those formulated by the legislator and, on other occasions, it states principles which open up a greater margin for the evaluation of reasons for the resolution of particular cases. However, its rules will inevitably generate recalcitrant cases in which the solution is arbitrary, and its principles will impose solutions that could not have been foreseen by individuals. Hence, when Hart (1994: 132) analyses principles, such as the standard of ‘due care’ in cases of guilt or negligence, he states:
This technique leaves to individuals, subject to correction by a court, the task of weighing up and striking a reasonable balance between the social claims which arise in various unanticipatable forms. In this case they are required to conform to a variable standard before it has been officially defined, and they may learn from a court only ex post facto when they have violated it, what, in terms of specific actions or forbearances, is the standard required of them.
65The consequence of this argument is that we need to proceed cautiously when criticising the vagueness of norms, and that it is also necessary to ascertain whether there are reasons that justify the way in which legislators have weighed the importance of other goods in the face of the requirement of precision of their norms. This new perspective of the nature of the wording of laws may serve to better understand both the contribution made by dogmatics and the way in which courts have to assess the validity of vague laws. In other words, if vagueness is not necessarily a defect and if courts do not reprehend the legislator by declaring vague laws invalid, then there are good reasons to revise the grounds of the criticism that dogmatics levells at the limits of the law and the need to accept dogmatic development as an inevitable intermediary between the law and legal justification.
66The contribution of dogmatics to the rationality of legal decisions is bound to its capacity to offer substantive reasons for the justification of the practice of punishment. These substantive reasons are generally directives (recommendations, rules, etc.) formulated by dogmatics. The justification for these directives lies in their fitness for capturing the requirements underlying the practice of attributing criminal responsibility. That is to say, dogmatic norms are mainly of a moral nature, and their scope and force do not depend on a specific canonical formulation. On the contrary, seeking greater specificity and precision conspires against the flexibility that they need to adapt to different contexts. This is why the addition of dogmatic rules for the justification of decisions contends with other formal justifications, e.g., legislated rules.
67In its classical variants, the requirement of criminal legality was, at first, a directive to the legislator to determine clearly and precisely the circumstances in which it is legitimate for the state to exercise punitive force. This search for precision and clarity is limited by the nature of human communication and, amongst other consequences, this means that the moral reasons that justify criminal laws are never fully covered by the legislator’s formulations. If the search of contemporary dogmatics is systematically directed at exposing the need for a moral adjustment of the legislator’s laws (that is to say, a systematic criticism of positive law), then its proposals may serve to illustrate the defects of legislation, and cannot simultaneously offer precision and specific limits to make legal decisions predictable (rational). In short, the failure of the aspirations of criminal legislation to fulfil the requirements of the ideal of legality also threatens the norms formulated by contemporary dogmatics.
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