To define the prohibited, permitted or commanded conduct, the lawmaker uses brute and institutional facts. Brute facts, for example a red deer or a human being, are those disassociated from the perception or belief of the witness. They can be described with reference to physical properties of the object, like biological age for example. On the other hand, institutional facts, for example sexual consent, are those phenomena related to the awareness of the spectator. They arise when members of a specific community collectively believe they exist and cannot subsist unless they are recognised as existing. As highlighted above, these institutional facts or elements must be distinguished from the prohibition or command itself. They are necessary merely to shape or describe the prohibition, the permission or the commanded conduct that is the genuine core of the criminal norm.
But this proposed distinction is not exempt from debate or discrepancies. Let me start by considering the argument that a feasible distinction between the different elements used in the description of a crime does not exist. That is, that a feasible distinction between brute and institutional facts or elements in the definition of a crime does not exist. Two opposite approaches will result from this hypothesis. The first assumption would imply that any element used in the wording of a norm that shapes the extension of a criminal offence are pure brute facts, descriptive in nature. The second would support the argument that any element or concept incorporated in the description of a crime becomes institutional.
The first proposition would uphold that a prohibited or commanded conduct can only guide the agent if the criminal norm defines the material elements of the prohibition or command. In drafting the criminal norm, the lawmaker portrays those factual or empirical situations that the norm commands or prescribes. Different elements or concepts can be used in drafting a norm. Some elements can be strictly comprehended by sensorial observation where others might require a more sophisticated intellectual understanding. But isolated, any particular element or concept included by the draftsman or judge in the shaping of the prohibited or commanded conduct is rigorously descriptive in nature. The (purported) institutional character belongs to the whole norm that shapes the prohibited or commanded conduct, and not to each of the particular fragments by which the criminal conduct is moulded.
In contrast, the second approach suggests that any concept or element included in the description of the prohibited or commanded conduct is institutional in nature. Any fact, object or any natural, cultural or psychological phenomena used by the lawmaker becomes institutional. Its inclusion in the criminal norm transforms its quotidian (brute) meaning towards a new normative sense. Thus, in describing a prohibited or commanded conduct, two different types of concepts, facts or elements are initially used. For example, red deer or property are concepts with obviously different natures. But in some sense, their presence within a criminal norm transfers to them normative/institutional sensitivity. Take, for example, the term or element ‘persona’: different disciplines have a different scope of the concept of ‘person’, but its institutional meaning in the criminal norm can only be properly grasped through the law as discipline, regardless of the meaning that this concept might have in other ambits. Every particular discipline, like biology, ethnography or psychology secures its own limits of the concept of persona. Law does the same in its particular institutional way. The description of persona referred to in law could differ from the same element in biology. For example, the law recognises the succession rights of the
nasciturus466, expanding the concept of persona beyond what biology could support. Also, the concept of death sustained in medicine or biology differs from the legal
466An unborn child, if subsequently born alive, is to be considered as already in existence whenever it is
definition of death. The law regulates the donation or extraction of organs for transplant. Law also delimits when an organ can be extracted and regulates when a person that is not clinically or medically deceased has normatively lost their personhood and their organs can be donated.
Thus, in short, it seems consistent to argue that once the element is incorporated into the definition of a criminal norm, a rigorous distinction between pure brute or institutional fact could be problematic. As discussed above, it could be possible to support the claim that any institutional element incorporated into a criminal norm has a brute nature. But it can also be defended that the law institutionalises any element incorporated to the criminal norm. Perhaps a sharp and conclusive framework will be difficult to construct especially in particular cases. But beyond this profound debate, at least intuitively, it looks evident that an essential difference exists between concepts like ‘red deer’ and ‘ownership’ even when incorporated into a norm. Hence, a different treatment should be provided for false beliefs about brute and institutional facts. In fact, as it will be defended later in this chapter, it is precisely the apparent differences in the perception process of both types of facts that justifies this dissimilar treatment.
That said, developing a classificatory theory about this matter would exceed the aims of this thesis. In any case, what is salient for our purposes is to discover the way in which knowledge or awareness about brute or institutional facts might affect the cognitive condition of responsibility. Particularly, whether the ECCR would apply differently or with different outcomes in cases of false belief about a brute or institutional fact. In short, what is relevant for our research purposes is to find out if there exists a critical quality that makes a cognitive difference in the attribution of responsibility of the agent who acts with false belief about a brute or institutional fact. This critical quality could only be identified if the agent has a cognitive difference identifying brute or institutional facts. That is, if a cognitive difference in the
perception of brute and institutional facts by the agent exists.
However, could knowledge about brute and institutional facts be similarly or equally perceived? To answer this question we must evaluate the singular nature of brute and institutional facts. As stated above, both have an objective nature but only
institutional facts exist as far as (and to the extent that) they are collectively recognised within a social framework. So, it seems that according with its constitutive origin, an evident cognitive difference should occur in the perception process of both facts. Where a brute fact only requires an act of visual or sensory perception of the object or the idea (fast thinking),467 institutional facts, on the other hand, require a deeper understanding or comprehension of their social meaning (slow thinking). Whereas the perception of a brute fact is merely graphic and actual, the true perception of an institutional fact requires the understanding of the social/institutional meaning of the object or phenomena. It therefore follows that if there is a cognitive difference in the appreciation between brute and institutional facts, it becomes appropriate to argue that a false belief about brute or institutional facts used in the description of a criminal offence would affect the cognitive condition of responsibility dissimilarly. Consequently, a different principled outcome should be provided for the criminal responsibility of the agent who acts with false beliefs about institutional or brute facts present in the criminal norm.