Apr 15, 2025
The Permissible Risk in Criminal Law: When Causing Danger is Legal
In criminal law, the doctrine of permissible risk constitutes an essential part of understanding when an action is lawful, even if it may pose a risk of harm. This article explains what the term "permissible risk" entails, how it affects assessments in criminal law, and the importance of subjective factors such as intent and motive on the legality of actions that involve risk.
What is permissible risk?
Society is built on the notion that a certain amount of risk must be legal. Even ordinary and normal actions can often involve some risk of harm without it being necessary to prohibit them or hold the actor liable for potential harmful consequences.
Examples of activities involving a lawful, permissible risk:
Production of cars, airplanes, or firearms
Offshore oil drilling
Production and sale of cigarettes, even though this may lead to lung cancer and death
Sports events such as boxing matches and car races
The concept of "permissible risk" should not be understood as a specific degree of danger one is always entitled to generate. The assessment varies both with the nature and purpose of the action. As the legal scholar Skeie expressed it, there must be "a right left to people for actions that have no specific useful purpose, a right to general life activity."
The determining factor for whether a risk-generating act is permissible largely rests on "the general perception, which in turn has its basis in customs and norms," as jurist Bernhard Getz formulated it back in 1875.
Exemption from punishment even with intent to harm
An important principle in the doctrine of permissible risk is that the rule of exemption from liability applies even if the actor desired or was aware that harm would occur, meaning even if there is intent to harm.
This means that when an action remains within the permissible risk, it is not only exempt from punishment but is entirely lawful. The consequences of this are far-reaching:
The action cannot be punished
Intervention against the action in another way (prohibition, self-defense) is precluded
The action does not entail liability for compensation
The significance of intent for legality
The question of what significance the intent behind an action has for its legality has been subject to extensive discussion in legal theory.
General rule: Objective assessment
The general rule in Norwegian law is that an action that objectively remains within the ordinary limits of freedom of action is not punishable even if it is carried out with intent to harm or other reprehensible motives.
This means, for example, that even those who produce airplanes or organize boxing matches with a desire to see accidents act lawfully if there is nothing objectively to criticize about the way they act.
This rule can be justified by the fact that:
It has little individual or general preventive effect to intervene against actions that objectively remain within normal limits
It may be against society's interests to prohibit activities that are objectively beneficial, even if the motive is objectionable
Exception: When intent matters
Nevertheless, it is now generally acknowledged that intent and other subjective factors can be significant in assessing whether an action is illegal. This principle is particularly important in the following areas:
Execution of public authority: It is often the purpose (intent) that determines whether lawful authority is exercised or illegal abuse of authority occurs
Exercise of subjective rights: The rule of vexatious intent implies that the exercise of a right can be illegal if it occurs solely to harm others
Specific criminal provisions: In some criminal statutes, the motive may be crucial for whether the action falls under them. This is particularly relevant in war crimes and aiding the enemy during war
Case law shows that courts have, in some instances, placed significant weight on the intent behind an action:
In a Supreme Court decision from the wartime era, the accused's desire to contribute to the Germans winning the war was deemed decisive, rendering the rental of horses for flights on an airfield punishable
In Rt. 1946 p. 1169, the Supreme Court stated that "the distinction between right and wrong will not always be ascertainable solely by characteristics that are naturally perceived and described as objective"
In Rt. 1996 p. 896, the Supreme Court stated that in determining whether an action that objectively fell under the criminal statute for receiving stolen goods could be exempt from punishment based on a general reservation of legal conflict, the intent behind the action could be of significant importance
In Rt. 1973 p. 1233, concerning the killing of a dog, the Supreme Court established that the subjective motives for the killing should not generally be given weight when the legal conditions for the killing are met. However, the court allowed for a scenario where the motive could be so unreasonable that it must be characterized as abuse that cannot be tolerated.
Attempt of a crime by factual harmless actions
It is important to distinguish between lawful actions within the permissible risk and actions that are outwardly normal and harmless but may be punishable as an attempt to commit a crime when the actor, due to a misconception, assumed they were capable of producing a harmful result.
Examples of such attempted actions:
A person gives another sugar in coffee believing it to be arsenic (attempted murder)
A person takes an item with the intent to steal, which turns out to be their own (attempted theft)
In these cases, it is not the objective risk that determines the punishability, but the perpetrator's subjective perceptions of the action.
Conclusion
The doctrine of permissible risk represents an important limitation in criminal law. It stipulates that certain actions are legal even if they pose a risk of harm, and this generally applies regardless of the perpetrator's motives or intentions.
At the same time, case law and legal theory demonstrate that subjective factors such as intent and motive can sometimes be relevant in determining whether an action is lawful. This is particularly true in the exercise of public authority, the exercise of subjective rights, and in specific situations where the motive is particularly reprehensible.
Permissible risk is thus an example of how criminal law must balance objective and subjective elements to determine where the line between right and wrong should be drawn in a modern society.
