SS 11 EXP N° 00339-2014-PHC/TC
ANA CECILIA SOTELO AGUILAR
of strict liability. It would be odd, however,-— perplexing, even— -to -
claim that one knew that such a legal system did (in theory) exist, but -
at the same time to maintain that one could not know the reasons for his /v
30
i -
has been easily routed. He makes a strong objection against the
unanalysed legal assumption that solitary events may be compared.
To know, in an ultimate sense, why this man killed his wife may te- ^
quire that one be this man who killed his wife. But the law has never
admitted to being that precise, and it has admitted that common moral
qualities can be discussed. That one may discuss reasons for what • ; ^
he did, or entertain proposals, follows logically from the assumption
inherent in the common law that the law, if known, must, on the part ^
of the agent, be given reasons for why it was not followed. The " ;
giving of those reasons constitutes the art of legal argument out ; ,: ' >
of which legal guilt or innocence ensues. v 1 i ^
The logic of the common case embodies an assumption that '
particulars can be talked about; they can be freed from their very
particularity by reason and speech. For instance, one Can talk about
’this chair’ and the force of onefs locution can be understood, and
acted upon, as in "Will you sit in this chair ? " Even if we were 6; to admit that the force of language is not related to objects, the
common law would not be troubled. One may perceive, and one may . . .
speak about what one perceives, necessitating no conjunction of V\'.V
speech to perception, and proposing a type of two-track theory of ,.
human behaviour. Yet if one did understand a sentence, "Will you
sit in this chair ?", and did in fact sit upon this chair, the
31
fact that an instruction had been brought about in a([n] assumed )
world of solitary and mysterious particulars. This particular chair
becomes, by force of the question, this-particular-chair-to-be-sat-
upon, or this-particular-chair-not-to-be-sat-upon. Were it a solitary
and mysterious particular no person could direct mine, or his own, y
or any other's attention to it by use of an illocutionary proposal, •
such as, MWill you sit in this chair ?** ,
If simpl;e directions can be expressed by the use of such y
simple locutions, then, it is argued, reasons can be given for actions.
The common case is no more a mysterious concept than that of a chairv
This object can have attention directed to it by means of an unlimited
number of sentential modes; likewise, out of the singularity and yty
particularity and uniqueness of human actions one can, for legal .
purposes, devise common classes of actions and cases which may v
be looked upon and understood. As I might qualify my question,
"Do you wish to sit on the blue chair to your right, or the red /
chair to my left ?", so one might talk about the killing of a person
as accidental, or by design, or by natural causes; all of these in turn
are subject to further possible refinement, as my question about
which chair to. sit upon may be refined:and made more precise.
By what physical or mental process one’s sentence arises, or by
what physical or mental process and what scientific conditions must v
obtain in order for there to a world in which chairs can be talked
about may present endless perplexities for a thinker; but the law
was not concerned about metaphysics. Why this world ? For the' , • .
- - *.The Council of Ahcyrani, 314 A.Dv, under Pope Silvester 1, ■; v
concerned itself with homicide in the following way. Question ,'
twenty-two of the Council, "ex interpretatione Isidori Mercatoris", 4
v was: De his qui volentes homicidium fecerunt. -^* The reply given ■ .■ •
: . at the Council was, to the effect, that if the killing Were a '
voluntary killing then it was absolutely the case that a penalty {
; ‘ : . should be assigned against the act; but if the killing were an in- ; - }
voluntary killing, then one should be deemed to be not guilty of
7 .. culpable homicide, but should; nevertheless, perform some kind of * > •
^ \ v penance that a human life had perished.19* if a penitent in the • ^ i 1
\ course of his confession admitted ; to causing the death of a person, ^
; but claimed, in good conscience, that the death resulted involuntarily :
; on his part, then his confessor could absolve the penitent, the
. : action confessed would not have been matter which was considered V ; 7-;'^>“77; •
to be grievous or mortally sinful. 1 If, on the contrary, the penitent '
^ : had admitted to killing another, and admitted that his own act was
V a voluntary act, a requirement in the chain of seriousness for the -
elements of a sin, then one had a different matter. In both cases
. . V. the same result was evident: some other had been ki 1 led.- '.The dis- p k-7:; ; 7:7
v . tinction rested not upon the ’matter’ of the act, as, for instance, . . ^
" 18. CONCILIORVM, Tomus Secundus, M .DC.XLIV, page 59.
19. Ibid., "XXII: Qui voluntarie homicidium fecerint, ad ppenitentiam; 7
quidem iugiter se submittant. Circa exitum autem vitae, c o ^ ^ -
^ munione digni habeantur;. Eos vero qui non voluntate, Sed casu ;; j
p ; homiciditmi fecerint, prior quidem regula post septem anno^ : - ' -jf:.
v P rum poenitentiam communioni sociauit secundum gradus con- 'P:>v-7’ Tf p p
; 7 7 stitutos* Haec vero humanior definitio, quinquenni tempuS ,
P 77':C ;
33
■ ■' ' ; 20- * -v .-v : • / / ' » -I : '■ •- 1: • h-z%;
Lady Wootton ’ has suggested should be the sole coresm of the court
(thus ridding the court of the problem of determining if an accused
had formed a criminal intention), but upon the 1 form1 of the act: did the penitent freely elect to sin ? The model is not; necessarily, /
of a penitent coolly sitting down to deliberate whether or not to
kill some other; the model is that a penitent, within the framework
of a penitential system, could distinguish for himself between what
he did, and thus for what he may be held responsible for bringing
about, from what happened to him, and for which he may, or may not
be held responsible. Whether an act was voluntary or involuntary ;r;
served as the test to distinguish between culpable and non-cupable.
A penance was recommended by the Council of Ancyrani in the instance .r
of involuntary homicide because a penance might cause the penitent
to strive to be more careful; such a penance also might serve t o ' r *
assuage any lingering guilt or remorse a penitent had for having
been involved, even though involuntarily so..in the death of another
human being,"*V; v* ■ > /f t , '':. V ;.
I have introduced the terms ’matter’ and ’form’ of an
act to help with explication. As explanatory terms they were not
employed until later in the development of moral theory by canonists;
20. One may consult her Crime and the Criminal Law (London: Stevens f ' f f r ' ’-'-
§ Sons, 1963), the fifteenth Hamlyn Lecture, especially chapter Two, "The Function of the Courts: Penal or Preventive ?*’, p p 32-57 which suggests that intention, as a question in a criminal defence, ought to be minimised, if not abandoned in English criminal procedure. One should incline towards the facts, and away from subjective
qualities and their ascertainment. Her criticism of diminished
responsibility as a viable and logically sound procedure was ex- ;
. pressed in; "Diminished Responsibility: A Layman’s View", The
Law Quarterly Review (Vo1.76,April I960), pp 224-239*T; f
Vv?-34
'• Leeming suggests V that Stephen Langton was the first to have . . :
- employed the concept in sacramental theology, but mentions that \
V } William of Auxerte used the term during the same period, the 1
} thirteeiith century. Langton’s death is given as 1228 A.D. ; 1
; ;• , . In language not scholastic, Leeming suggested that the early , * ’ \
v : ; •* J Church theologians, such as Tertullian Cyprian, Cyri 1 of Jeru- / !: j ^ ^ ? |
{ '*s .vSalemi. Gregory of Nyssa, and St. Ambrose of Milan, laid the •' ^
; .. foundation for such a distinction between matter and form, but > : { :
" without developing pre-existing Aristotelian categories. He
~; . said, and I quote, ” ...nevertheless it is clear in their minds
. that there are in a sacrament the two things, the material element
and the verbal. ’1 -**Z’ The terms themselves find their way into ..
the common law, its criminal tradition, when the law employed
’ ? the distinction between the objective matter of a crime, its v . s ^
• / reus^from its subjective element, ~ the mens rea of the crime. ' ; .
21. Cf., Principles of Sacramental Theology by Bernard Leeming,S.J., '
(Longmans Green and Co., 1955: London,New York,Toronto) at ;*.•
■ v ' pp 403-407, "The Matter and the Form in the Sacraments.”
■ : Also, A. Michel, art.” Matiere et Forme”, in Dictionnaire
de theologie catholique Ced. Vacant, Mangenot, Amann: Paris, , ; v ■•;= 1903-52), vol . X, (1928), col. 346-9. Also, Chapter 11, ; • K; : C
’ , V ’’Matter and Form of the Sacraments” in vol. three of
Moral and Pastoral Theology by H. Davis, S.J., ( Sheed ", ;
and Ward, 1945: London, in four volumes ), pp 9-13. Davis . c i t e s the decree of Pope Eugenius XV [1431-1447] to the ’
''Armenians, [given 22 November 1439] which stated that all ;
s' ’’Sacraments are constituted of three elements: by things which
s are the matter, by words which are the form, and by the
^ person of the minister.” page 9. This would bring the usage Vv‘.,:'
35
One can admit that a general comparison can be made between the
*matter' of a sacrament, and the reus of a crime, and. the 'form'.. ;
of a sacrament, and the intentional element in a crime. \
The force of the Council of Ancyrani continues to serve as
a criminal model in penitential reasoning when one reads that it
was referred to as a guide by Pope Zacharias, 741-747 A.D., in his
seventh letter, or Epistola VII, the title of which was, "Zacharias
papas ad Pippinum maiorem domus regiae , itemque ad episcopos, ab- v"’". I-* .• •••••• "• "24- ' *‘" V ;-V'- bates et proceres Francorum." * Two of the questions set for
guidance concerned homicide: XXIII, "D£ his qui homicidium sponte
p e r p e t r a n t and XXIV, "De his qui homicidium non sponte perpetrant."25.
23. In his discussion of duress in Lynch v. P.P.P. [1975] 1 All ER 913, R.A.G,O'Brien in "Compelled to Abet Murder" observes, "The concept of actus reus and mens rea was developed in our
[English] criminal law from the conditions laid down by the
moralists for the commission of mortal sin. Grave matter is :
the actus reus and full knowledge and full consent are the ;
elements of mens rea.... In Canon Law it [duress] will be found under the heading of "metus". In the Code, it is stated that "metus" diminishes the imputability of a delict where the act is intrinsically wrong; in other cases it takes away guilt
altogether: Canon 2205 paras 2 and 3." (LAW § JUSTICE, No. 48/49, Trinity/Michelmas Terms, 1975) page 87.