The Requirement of Guilt in Criminal Law: Principles and Justifications

In Norwegian criminal law, it is a fundamental premise that criminal liability not only requires that a person has objectively violated a penal code but also that the individual has displayed subjective guilt. This article provides an overview of the requirement of guilt, its justification, and main forms, as well as the rare exceptions where criminal liability can be imposed on an objective basis.

The Principle of Guilt - A Main Rule with Few Exceptions

It is an almost exception-free rule in Norwegian criminal law that criminality requires subjective guilt on the part of the actor. Violations of the penal code generally require intent, but at least negligence. This means that individuals who inadvertently violate a penal provision are free from punishment.

For example:

• A driver who, by unfortunate accident, fatally hits a child who suddenly runs into the roadway has objectively caused a human's death but is not punishable because the necessary guilt is lacking.

• A man who remarries believing that his former wife is dead has objectively violated the prohibition on bigamy but is free from punishment for the same reason.

Guilt as a Legal Concept

"Guilt" in this context is not a moral concept, but a legal one. Although there is a close relationship between the legal and moral concepts of guilt, they do not necessarily coincide. Both rest on the assumption that it can be reproachable to the perpetrator for acting as they did, but:

• Someone acting in accordance with their own conscience may be morally guiltless but still meet the legal requirement of guilt.

• The idea of guilt and reproach becomes problematic to the extent that a deterministic view of human behavior is applied.

Forms of Guilt

The two main forms of guilt in criminal law are intent and negligence:

1. Intent is the most important form of guilt in central criminal law and is required in most provisions of the penal code.

2. Negligence is sufficient under many special provisions and is the dominant form of guilt in tort law.

Within intent, there are particularly qualified forms such as purpose and premeditation. Within negligence, some penal provisions distinguish between gross negligence and ordinary negligence.

In some cases, the form of guilt can be mixed, so that intent is required in one direction, while only negligence or no guilt is required in others. An example is defamation, which must be committed intentionally to be punishable, but liability for the truth is, as a rule, objective.

The Justification for the Requirement of Guilt

The principle of guilt has not always had the same unconditional dominance in legal history. In ancient law, both in Germanic and Roman law, as well as in other legal constitutions, there was criminal liability on a purely objective basis. The primitive legal system viewed the case from the perspective of the injured party and focused on the inflicted injury, not on the perpetrator's subjective conditions.

In modern criminal law, the requirement of guilt can be justified both in terms of retribution and preventive considerations:

Considerations of Retribution

Just retribution must assume that the perpetrator can be reproached for the action. It would be unreasonable to punish someone for something they cannot be blamed for.

Preventive Considerations

The requirement of guilt can also be justified by the preventive purpose of punishment:

1. Individually Preventive: Someone who has accidentally caused a legal breach has not shown any danger that society needs to protect itself against.

2. Generally Preventive: For someone who does not know and cannot know they are guilty of a legal breach, the legal threat of punishment cannot be effective. It is also more important to react strictly against intentional breaches of law than against negligent ones.

Further Justifications

The requirement of guilt is also justified by:

• Moral Considerations that limit the state's right to use punishment. Punishment can only be justified for someone who has chosen to break the law despite being able to refrain.

• Considerations of Social Security. If one risks punishment for mere mishaps, it would create anxiety and worry. The principle of guilt gives individuals a greater opportunity to plan their life within the boundaries of the law.

These objections to objective liability are strongest when serious punishments are involved and have less weight when it is only a matter of limited financial responsibility.

Guilt Must Exist at the Moment of the Act

The guilt must exist at the moment the act that conditions liability occurs. A subsequent approval of the act does not have the same effect.

In ongoing activities, however, a person can become liable if they continue after becoming aware of the situation:

• Someone who has cut trees in a neighbor's forest believing it was their own is not charged with theft, but if they continue after becoming aware of the boundary, the act is punishable.

• Someone who has purchased a stolen item in good faith is not guilty of receiving stolen goods at the time of purchase, but disposing of the stolen goods after becoming aware of the circumstances is punishable as misappropriation.

Depending on the circumstances, failure to prevent or limit harm can also incur liability if the person who inadvertently set the chain of causation in motion becomes aware of the situation while still capable of controlling the further development of events.

Criminal Liability Without Guilt - Rare Exceptions

The Penal Code's Act for Entry into Force § 8 presupposes that there are penal provisions that do not require guilt. The provision states that fines imposed without personal guilt cannot be served with imprisonment if guilt is not proven. The fine can instead only be enforced through civil enforcement.

The Penal Code itself has no provisions on objective criminal liability. In special legislation, there were previously several such rules, mainly in two categories:

1. Rules imposing objective liability on the owner to oversee their animals

2. Rules imposing objective liability on the owner of a business for their employees (a legal master's responsibility)

As legislation has been renewed, these rules of objective liability have largely disappeared. Provisions where criminal liability is objective in all respects are likely contrary to the presumption of innocence in Article 6 No. 2 of the European Convention on Human Rights.

Corporate Penalty

With an additional act from 1991, the Penal Code in §§ 48 a and 48 b introduces rules on penalties for enterprises. Under these provisions, both legal persons and sole proprietorships can be penalized (fine and loss of rights) when a penal provision is violated by someone acting on behalf of the enterprise. For such fines, no subsidiary prison sentence is determined.

Shifting the Burden of Proof

In some cases, the law takes a middle road by placing the burden of proof for innocence on the accused. This effectively results in liability without guilt in cases where there is nothing to blame the responsible party for, but they are unable to prove innocence.

Other Reactions with Punitive Characteristics

In certain cases, responsibility with punitive character is imposed on others than the guilty, even if it is not formally defined as punishment. Examples include:

• Additional tax under the Value Added Tax Act, where the taxable person is also liable for the actions of assistants, spouses, and children

• Fines for illegal parking, which presupposes guilt on the part of the driver, but can be enforced on the owner

• Fines for overloading, which fall on the owner on a purely objective basis

Conclusion

The principle of guilt is central in Norwegian criminal law and is justified by both considerations of justice and preventive reflections. Although there are certain exceptions, particularly in the area of administrative penalties, the main rule is clear: For an act to be punishable, the perpetrator must have displayed subjective guilt in the form of intent or negligence. This principle reflects a fundamental belief that punishment should only target those who can be reproached for their actions.