Costumbre Internacional (Derecho Internacional Consuetudinario)

as, for instance, Professor Kaye might have been in his articles on the early history of murder and manslaughter (L.Q.R. July, 1967) which involved him in actually reading early court records in manuscript form, Even Stephen (page 29) in volume three of his History of the Criminal i Law (Op.cit.) confesses that he does not understand Bracton's dis- tinetions between homicide as lingua and homicide as facto, although he does understand the divisions under deed. For the philosopher it is sufficient that distinctions were attempted showing that even in early criminal codification stress is upon what an agent does, however opaque the distinctions seem. Opacity is, and has always been, a major legal hazard in the development of the law, as dissenting judgements

/. ; . act rests, in an agent’s state of mind. Criminal guilt is, although Y ; y

: ; Y; v a tortured and difficult process (perhaps) to determine through means (■YYv.Y;

of a tortured and difficult trial process, that which indicates or Y ' Y y ••••,; \

; symbolises a guilty mind of the agent. The criminal law wi,ll keep

Y'V:> returning to the agent, even in a modified form when the 'law* assumes / \ =

that an agent 'should have foreseen' the 'natural consequences•' of h i s Y Y YY

, act. That formula, however, must be struck down in cases of i n s a n i t y , Yy y YY,

Y , ; which return to the state of an agent's mind: that he couldnot fbnn ; V Y Y.

; ,Y-' a criminal intent (for whatever reason), and thus his 'mind' could not YyYI

; ; ; ... contain 'guilt' for his act . These are general principles, but as Y ’> YYj

; general principles they are rooted early on in the common law. Bracton .

has drawn upon the sacramental tradition, and upon the moral tradition Y YYY

Y of the canonists j the yeast of both traditions at work in his early ' 'vY''vY.Y;' ;-:Y •

Y ; Y’-Y- codification of the criminal law. The sacramental tradition was con- Y ; Y: Y Y

cerned to establish that a sacrament, by means of its matter and form, ,

Y ' Y could be administered properly, and it did so (in part) by developing

Y;..YY-Y" > the doctrine of sacramental intention which was present in Twelfth and. y v Y

Y Y ; Thirteenth theological writings about the nature of a sacrament. The

Y Y moral and canonical tradition needed to establish that a penitent could Y

Y :

Y

; and volitive elements: one knew that one sinned, and one willed not to. Y

YY Y : ■ Y Sin; again. The power,; in part, rested in the agent to know w hat he ha d Y :Y Yi^

170

which serve to form a conception of what is a unified human act, and

to which some concept of responsibility might attach.

Bractonfs divisions of the crime of homicide provide us

with little new conceptual analysis. His analysis is fairly much an

accepted following of earlier theological divisions, save that he does

bring into his criminal division the statement that the mind of the

offender, in some way, determines the nature of the act. The link

between design and execution rests in the intention of the agent, and

Bracton speaks of it in this way: ;

- , . " ; "But it is homicide if done out of malice or from v

. pleasure in the shedding of human blood [and] though

; the accused is lawfully slain, he Who does the act

commits a mortal sin because of his evil purpose. But

, ' . if it is done from a love of justice, the judge does not /

• ; sin in condemning him to death, nor in ordering an of-

7: ^icer to slay him, nor does the officer sin if when sent -

■ : by the judge he kills the condemned man. But both sin

; J; ; if they act in this way when proper; legal procedures

7 have not been o b s e r v e d (29) . \.v: ^ ^ v: 'V7'■''/

Q : V 29. Thorne, page 340. The Latin text reads thusly:

"Istud autem homicidium si sit ex livore [ in the tropologic

v ■ ; ; Xh . sense the second-order meaning of the term is: envy, spite,

malice, ill-will ] vel delectatione effundendi humanum san- guinem, licet ille iuste occidatur, iste tamen peccat mortal!- ter propter intentionem corruptam. Si vero hoc fiat ex amore iustitiae, nec peccat iudex ipsum condemnando ad mortem, et

w praecipiendo ministro ut occidat eum, nec minister si missus

a iudice occidit condemnatum. Et peccat uterque si hoc fece- rint iuris ordine non servato. " (page 340)

171

The ’intention1, if one attends to the Latin text, is not the intention

of mens rea; it is the concept of intention which is qualified by a

volitive use of a participle as an adjective, ie .•corruptam1 tells v

one the nature of the intention, "...propter intentionem corruptam." i

The notion of 'corruption1 followed on in the tradition of St. Augustine; of Hippo, that the will, as a human power and faculty, was the seat of

human corruption. ; .. :; ... ; . ; - w / :• 'V --; V

. I am not trying; to make much of little; but I am concerned ; ;

to argue that if one accepts the notion of intellect that mind cannot

help but know what is presented to it, then ( within Augustinian theory )

evil (within its many manifestations) must spring from the human will.

The priority of value within the casual depiction of a human act will ;

be to attribute to the will the power of being a first cause (however .

difficult it may be to account for such a notion without at the same

time.encountering logical paradoxes), and, as a first cause, it may

or may not embody what it Ought to follow (namely: the good). In any

case, if one is to have a notion of criminal responsibility (derived,

as it can be seen, from a notion Of theological rectitude) which is

coherent, it makes no logical sense to punish, or to extract any form

of retribution, if, hypothetically, a theory of human acts is advanced

which holds that human acts are non-rational in origin . The will , it

must be argued,' although it may not follow what ought to be the case : ,.

by seeking the highest good, will, nevertheless,; rationally follow , : 7

after some good which is desired to be the case. An evil act ( and, 7-

by force of similitude for Bracton, a criminal act ) must be a rational

.act.'*' '' .'•'' • : •. '“

172

: A mis-emphasis seems to occur when (in theory) one confuses v7

that "one may elect to do" with "one should have done." In general,

to argue for criminal responsibility it is hot common to have as a v 7777:;7:7y part of a theory a developed concern why an agent may do less 'than-; ;-V:V 7,7''777777 what he can do, or should do. I am aware, however, that the law will / "V ':7-7y77

entertain capacity hearings to determine if one is sane, or if a child y

has the capacity to appreciate the meaning of a criminal statute under

which he is charged *. It is when one turns to a theory of excuses

or exemptions under the law that one will then concentrate upon the question

of why an agent did less than he should do. The roots of the assumption

for us in this culture may be Pauline: that one tries for the good, but

does evil, even against one’s willy That is a mystery I am not attempting 7 7\;7'.

to solve here. 7 . . ’y;" '• \7yt.t7 7 :'7v7V '77 y %.y7; .7-;; 7 . .. .f. . . .-v/7:yy

The principle had; been part of common discourse of the period that '777 V ■

1intention* determined how an human act was to be viewed. But such viewing, 7