According to our programme, this session is to serve as a “general introduction” to our colloquium. Experience shows that assignments of this sort face two grave dangers: they are either confined to the trivial or they bite off more than they can chew. In order to avoid these pitfalls, I have chosen to present an historical review of the major stages of criminal law reform in Germany. Because Israel is also in the process of reforming its criminal law, it might be interesting for the Israeli participants to hear about the reform process in our country. In the course of my presentation I shall, of course, pay particular attention to those aspects of the law which will be dealt with during this conference.

This being a presentation of a legislative enactment, not explanatory notes or a commentary on its provisions and certainly not a theoretical, comprehensive analysis of the topics considered therein, it is bound to be most concise and selective. The reader will thus encounter below a brief reference to the main subjects dealt with by the Proposal, with emphasis on the significance of proposed solutions.

The reasons why Israel requires a new penal code, generally, and, for a start, its Preliminary and General Parts, in particular, are inherent both in the process whereby the existing Law has developed, and the quality of that Law.

Israeli criminal law suffers from old age. Its direct source is the Criminal Code of Cyprus of 1928; the latter having been copied, with certain changes, from the Queensland Code of 1899, which for the most part reflected the judicial decisions of English common law, some of which were formed many years previously, and are largely outdated. Scientific standards have changed and progressed.

Initially I was taken aback at the request that I express my views on the most important aspects of the general part of the draft Israeli penal code, because the draft contains Anglo-American legal concepts, such as “strict liability” and “mens rea”, which are unknown in Continental-European criminal law. At second glance, however, something quite different came to my attention; namely, that the contents of the draft reflect, to a large extent, the European legal tradition even though the terminology is in part quite different, and even though the draft only partly corresponds to the present dogmatic structures of the European legal system. Some of the passages almost sound like summaries of a middle-European textbook on criminal law. At the outset I want to offer my opinion on the draft: it is a good draft, up to the level of international discussion. It even sets out important parts of the general principles of liability much more precisely than does the German Criminal Code. Many of the draft's solutions are, of course, open to debate, but precisely for that reason we are assembled here.

In this paper, I shall address three problems: the question of content and limits of the “mens rea” elements (part II), the controversy over the correct concept of negligence (part III), as well as the problem of “divergence from the intended causal chain” (part IV). In doing so, I will compare the regulations of the Israeli draft Code (the “Israeli Draft”) not only with German law, but also with English and American law. Of course, within the scope of this paper I can neither probe deeply into the subject matter nor address all the important questions related to it.

Before starting with my questions and comments, I would like to make two introductory remarks:

1. First, I have to admit that I am unsure whether I understand correctly the regulations of the Israeli Draft (sec. 19-21, 22, 54). At least three sources of potential misunderstanding exist: first, the English version of the Israeli Draft is a preliminary translation of the Hebrew text. Any translation may shift the meaning of the original and binding Hebrew text. Second, misunderstanding may also result from my rather modest knowledge of the English language.

The use of the word “intention” has given rise to considerable uncertainty regarding criminal offenses in the Israeli justice system. The term remained undefined in the Israel Criminal Code [New Version] — 1977, despite the fact that it was used in its offense-creating provisions, and was applied by judges on a daily basis. This paper will provide a survey of Israeli jurisprudence on the meaning of the word “intention”, a comparison of relevant provisions in British law, and observations on the reform bill for Israel's Criminal Code (the General Part) of 1992.

Justice Agranat authoritatively defined “intention” in the 1952 case of Jacobovitz v. Attorney General as “foresight of a result accompanied by a desire to bring it about”. This definition has been applied throughout Israeli case law and was reaffirmed of late by Chief Justice Shamgar in Vannunu v. State of Israel.

The Israel Penal Law, 1977, which is deeply rooted in English common law, contained, until recently, very few definitions of basic criminal concepts. Negligence was one of the definitions lacking. The law seldom used this term explicitly when defining specific offenses in the code. The newly enacted General Part of the Criminal Law, as part of its systematic treatment of essential criminal notions, is the first piece of Israeli legislation to cope with this term.

The various aspects of negligence have been developed in Israeli criminal law since the early 50's, mainly through Supreme Court decisions, first and foremost with reference to negligent homicide. This mode of development of law has inherent limitations, since its shaping depends on occurrences of events and the consequent raising of relevant questions of law in the courtroom. However, in the Israeli case, this evolutionary process has not hindered the development of the status and importance of the said mode of fault.

Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.

My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where the actus reus is committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.

I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated, inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.

My lecture deals with three loosely connected topics, which are treated together in German textbooks.

1. Acts authorized by law as mentioned in article 49, section 1, of the draft.

2. Acts on the order of an authority, as mentioned in article 49, section 2, of the draft.

3. Acts for the purposes of education, as mentioned in article 49, section 5, of the draft.

Initially, a German scholar would be tempted to view the provision in article 49, section 1, as redundant. From a German point of view, it is evident that someone, who is authorized by law to act in a certain way, does not do so unlawfully. One of the first principles German students learn in their criminal law lectures, is that every act permitted by statute is in effect the justification of what is by definition a criminal offence. This is derived from a principle, which we call “unity of law”. This means that there may not be any contradictions in the law, and that an act permitted by it cannot also be forbidden by criminal code.

In this era of increasingly extensive legal regulation of human behavior, there is one type of human conduct which seems almost unpermeable to legal regulation: the education of children. The problematics of exercising educational or disciplinary powers against children concern a variety of situations, including the prima facie infringements of many personal rights of children. The most typical limitation of the rights of children by disciplinary measures is, of course, corporal punishment, that is, by actual chastisement conducted by a parent, a guardian, a schoolteacher or any other adult responsible for the training or education of children. However, children are also liable to the infringement of other rights. To a great extent, a child does not fully enjoy many personal physical rights considered to be indisputable for an older person. Thus, for example, a child's detention against his will may not constitute false imprisonment, and the seizure of a child's most intimate personal property may not be considered trespass. It is only for the sake of simplicity, therefore, that I prefer to focus our short discussion on the most conspicuous instance of this general phenomenon, namely, the deliberate physical assault of children.

Self-defence and necessity are central institutions of the General Part of German Penal Law. Numerous problems of considerable practical and theoretical relevance are connected with them. How to deal with “self-defence” and “necessity” is also an indicator of liberality or, on the other hand, of the minimum solidarity and public spirit which a State can concede to its citizens or demand of them. In German criminal theory, “self-defence” and “necessity” are closely connected with the release of the distinction between justification and excuse and all conclusions derived thereof.

Instead of elaborating on fundamental or purely theoretical problems concerning self-defence and necessity, an illustration of the contents of the German provisions of self-defence and necessity from a more technical, but nevertheless practical, point of view will be discussed. In the course of the discussion, some differences between the Israeli Draft law and the German law will be pointed out, and some problems which are unsolved in German law and may possibly confront Israeli law in the future will be brought to your attention.

The defenses of Duress, Self-Defense (or private defense) and Necessity are today set forth in sections 21, 22 and 22A, respectively, of the Israel Penal Law, 1977. However, in order to understand these defenses fully, it is necessary to go back to the provisions of the Criminal Code Ordinance, 1936, wherein the ruling British Mandatory authorities replaced the Ottoman Penal Law which had prevailed in Palestine before the Mandate. For, its name to the contrary notwithstanding, the 1977 Penal Law was not primarily an original Israeli enactment. Rather, it was in considerable measure merely a Hebrew translation of the original Criminal Code Ordinance. This is especially the case in connection with the Ordinance's General Part, which includes the defenses that concern us here. It was only in 1992 that the Knesset enacted original Israeli legislation concerning these defenses.

The relevant section of the Israeli draft concerning “Mistake of Law” reads as follows:

The corresponding section of the German Criminal Code (StGB) concerning mistake of law (§ 17) reads as follows:

Generally speaking, the definition of the mental element in crime does not even strive to encompass all the varieties of the psychological processes which accompany the commission of an offence, but sorts out only such components of it which legal policy dictates to be useful and workable. For instance, generally speaking, no notice is taken of the motive or of the intensity of passion, or whether the mental element was spontaneous or premeditated. In sorting out what parts of the psychological process should form part of the definition of the mental element, many considerations come into play, such as the ability to verbalize and define such processes, difficulties of proof, etc. One of the components of the psychological processes which is disregarded in the definition of the mental element is knowledge of the existence and scope of the criminal norm, and the existence and scope of “defences” (as they were called in the old Penal Law, 1977) or “limitations to penal liability” as they are now called in the new Preliminary Part and General Part of Penal Law (hereinafter the New Code).