Project HERCULES – Ratio decidendi: towards a criminal judicial evaluation model


Prof.ª Doutora Maria Fernanda Palma

Research projects

This research project aims at the comprehension of how the relations between the national jurisprudence, the normative system of criminal liability and the legal doctrine are reflected directly in the decision of concrete cases and indirectly in the development of systematic and normative decision guidelines. We are faced with two types of challenges: first the design of a methodology and critical evaluation parameters which allow the conclusion as to how the criminal system is developed through judicial decisions; second the application of these analysis parameters to other normative systems. The heart of the problem resides in the fact that empirically the formal judicial discourse employs doctrinal quotes and references as mere etiquettes or coverage for the real ratio decidendi, often differing from academic thought. The aim is to uncover systematically these divergences and hidden criteria which represent an independent development of the norm and the doctrine in the concretization of the criminal system through judicial decisions. In terms of methodology, the design of criminal judicial evaluation model will be obtained by a joint effort of thematic working groups which will systematically analyse case-law clusters to obtain concrete and thematic judicial evaluation models (tentative evaluation model). Simultaneously, case-law clusters from different normative systems like the German or the Spanish will also be analysed. In principle, each thematic case cluster will form a working group which is assigned to one researcher. Due to work load and human resource allocation, the working groups will be allocated in time, respecting the two steps of Ratio decidendi: towards a criminal judicial evaluation model. The several working groups will deal with the different problems, core topics of criminal theory and auxiliary topics. Serving as a reference, regarding the first thematic clusters, this will be done in the following way:

a) Constitutional criminal law: The aim of the present working group is to analyse the penumbral areas convened by the interpretation of the constitutional imperative of criminal legality. We will analyse the judicial argumentation and justification method regarding the most controversial ramifications of the legality principle. During this scrutiny, we will start from a text-norm assessment, and then assess critically the interpretative arguments (meta-textual interpretation), such as arguments stemming from the legal doctrine. This will allow us to: 1) establish a judicial evaluation model; 2) draw conclusions as to the concrete validity of the interpretative solutions and, correlatively, as to the intra-systematic coherence.

b) Legal methodology: Here, a deeper analysis, capable of identifying the essential judicial decision parameters as well as the forms and rules of interpretative argumentation, is sought. The aim of this final judicial justification model will be to guarantee internal (rational argumentation) and external (rational acceptability – plausibility) validity. We will test whether such validity might be obtained through the possibility to reconduct the justification criteria to the premises of rational discourse which flow from the basic principles of rationality.

c) Objective imputation and justification grounds: Objective imputation is the procedure by which one looks if na harmful event may be attributed to an individual?s conduct. For decades, jurisprudence developed a set of arguments courts are supposed to attend when deciding an objective imputation case. But there’s rarely agreement about the way an important rule or principle in this field shall be understood. Justification grounds are reasons for a conduct to be exceptionally permitted, even though it would normally be considered a criminal offense. Self-defense, for instance, allows an individual to strike an aggressor. There are multiple principles and rules one must consider when verifying if a justification ground applies in a concrete situation. Some of them are presented by legal theorists and eventually developed by the courts. Others are created by court decisions. The aim of this working group is to examine the way courts develop such rules and principles and to understand if and how court decisions end up creating a new set of practical guidelines (then followed by other courts), as well as figure out if one may talk of a proper criminal responsibility system stemming from these decisions.

d) Dolus: This working group will focus on the analysis of decisions of the Portuguese criminal courts regarding subjective liability. The Criminal Law dogmatic was always concerned with the distinction between dolus eventualis and conscious negligence. The traditional criteria used by the doctrine is established on a idea of will, based on the voluntary element of dolus, since the cognitive element is the same both in dolus eventualis and conscious negligence. Legal theory appeals to different formula such as to take the risk of injury seriously. In this kind of formula one may still recognise the importance of the will in dolus, even when this element is combined with a logic of criminal politics, such as prevention. Despite these positions, the newest doctrinal thesis seem to reject the will element in dolus. This leads to a construction of a pure normative vision of dolus. Our aim is to analyse the judicial solutions concerning the distinctions between the figures of dolus eventualis and conscious negligence, which criteria are used by courts and how they justify their decisions, comparing it with the legal system of criminal responsibility and the legal theory thought.

e) Error about the wrongdoing: This working group will focus on the analysis of court decisions regarding an element of the category of guilt, the consciousness of the wrongdoing. If the agent is not aware of the wrongdoing of his conduct, he is in error. This is an error of evaluation. Currently the traditional distinction of mistake of fact and mistake of law, as well the idea of error iuris nocet, seem outdated. Most of the doctrine recognizes the error about wrongdoing, nevertheless this kind of error can only exclude guilt in some situations. In Portuguese criminal code the error about wrongdoing excludes guilt if the error cannot be deemed reprehensible. If the error is reprehensible we can only attenuate the sanction. After the analysis of the solutions of jurisprudence, our intent is discover if these solutions are compatible with the solutions of the legal system of criminal liability and with the criteria of the traditional doctrine, or if jurisprudence is open to new discourses about guilt, focusing on the emotional ethical values of the person and abandoning the figure of the average man, which represents a kind of arbitrary thought about values.

f) Culpability: This working group seeks to understand what kind of evaluation and grounding parameters are used by criminal case-law to solve the problems regarding: who must be acquitted due to insanity; who has his understanding or determination according to the wrongfulness deeply diminished; who may be acquitted by a cause of excuse. It aims to identify whether and how the conceptions developed by the doctrine and expressed in criminal law are received by the courts. The issue of the reciprocal influence between Law and sciences like Psychology or Psychiatry takes on a leading role, as the way judges interact with the experts is not precise. It?ll be sought to understand how the courts monitor the development of these sciences and receive it in their rationale and relationship with the experts. The problem of insanity is a central issue in the theme of culpability and its connection with the concept of freewill and all the basis of the right to punish. Ultimately, it is intended to comprehend how the courts respond to the following questions: What is a psychic anomaly? What makes one unable to assess the wrongfulness of the fact, or to be determined according to that assessment? Is this an exclusion of guilt or an obstacle to the its verification? Who decides if the agent is culpable? Why is he not the punished? Another problem is the one about the defendants who, despite having the ability to understand the wrongfulness of his act, or to determine his action according to it, have this ability deeply diminished due to a mental disorder. Courts developed this concept in order (apparently) to provide a fair solution to “difficult” cases concerning the boundaries between culpability and non-culpability. Finally, we intend to study the way the Portuguese courts look to the different causes of excuse.

g) Omission: This working group will focus on the analysis of the Portuguese court`s decisions of the Criminal Law Theory regarding Omission. This requires, first and foremost, that we find the meaning of action in Criminal Law. Then, we will be capable of discerning a distinction between action strictu sensu and omission as aspects of the wider concept of action. The limits are of the upmost importance because responsibility for an omission requires a legal duty that personally binds the agent and in these cases mitigation of the sentence is allowed. We shall also deal with the distinction between omission as defined by the law or pure omission and impure omission. In this respect, it is imperative to understand the jurisdiction of the article comparing omission to action, as foreseen in the first segment of article 10 of the Penal Code, just as it is to understand the meaning of the exception provided in the final part of that norm, according to which the equivalence of omission to action will be denied, if such is the intent of the legislator. We will also examine the sources of assurance of legal duty which the legislator subdues according to the penal relevance of impure omission.

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