Criminal law, being the branch of law that has been traditionally seen as the right one to identify and assign liability for actions that seriously breach legal norms, plays a far more important role. Not only are verdicts of guilt perceived by the public as an indication or confirmation of a breach of the law, but they are also believed to be a sort of condemnation. Therefore, they undoubtedly carry moral significance. In fact, the legislator’s criminalization-related decisions to a large extent overlap with citizens’ moral beliefs, especially in the area traditionally reserved for criminal law, such as the crime of homicide or larceny. The link between criminal law and ethical beliefs in the area of the catalog of types of prohibited actions is obvious. What most likely deserves an analysis is whether such relation exists in the case of the general part of criminal law.
The proposed existence is to refer to the notion of the ethical principle of double effect and to its possible impact on the exclusion of unlawfulness in criminal law. The principle of double effect is rooted in the doctrine of Saint Thomas. Later it was elaborated on by neo-Thomists and today it is broadly discussed not only during ethical debates but during legal debates as well. These days, it is frequently applied when making decisions in the area of medical law, especially in such complex matters as saving a pregnant woman’ life when the death of her child is involved, or separating conjoined twins when such separation would eventually lead to the death of one of them.
The diligent analysis of the principle of double effect and the effort to translate its effects into the language of criminal law may lead to the conclusion that any conduct justified on the basis of that principle should be seen as primary lawful in criminal law. The more modest version indicates that the legislator should so formulate the principles of criminal liability that at least – regardless of the judgment sphere – such agent would not be charged with criminal liability.
Global Law Review 2018, nr 2
Strona prywatna dra hab. Krzysztof Szczuckiego - adiunkta w Katedrze Prawa Karnego Porównawczego na Wydziale Prawa i Administracji Uniwersytetu Warszawskiego oraz Prezesa Rządowego Centrum Legislacji.
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