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Constitutional Principles and Criminal Law*

Published online by Cambridge University Press:  04 July 2014

Mordechai Kremnitzer
Mordechai Kremnitzer
Affiliation:
Professor of Criminal Law, Faculty of Law, The Hebrew University of Jerusalem.
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Extract

The enactment of Basic Law: Human Dignity and Freedom marks the beginning of a new era in Israeli law. This is a fitting opportunity to sketch an initial outline for the relationship between the constitution and the substantive criminal law, and the effect of constitutional principles on penal law. The truth be told, the constitutional principles already existed prior to the enactment of the Basic Law. And if, for example, we examine Prof. Feller's approach to criminal law, we cannot but be impressed by the highly developed constitutional element. Nevertheless, Basic Law: Human Dignity and Freedom does provide an excellent excuse for addressing the subject. Moreover, its enactment paves the way for certain interpretive changes in Israeli penal law, and because it allows for judicial review of the legislature of the future, some clarification is called for as to the limits of legislative power in the field of criminal law in light of fundamental constitutional principles.

Basic to constitutional law and criminal law is a shared image of human beings. It is a conception of human beings as “morally” autonomous, with the basic faculty to understand reality and distinguish right from wrong, able to contribute to developing social norms and to understand and internalize them, competent to decide how to act and capable of realizing that decision.

Type
Articles
Information
Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 84 - 99
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 Barak, A., “The Legislative Revolution — Protected Human Rights” (1993) 1 Law and Government in Israel 9.Google Scholar

2 Feller, S. Z., Elements in Criminal Law, Vol. I (Jerusalem, 1984, in Hebrew) 1–113.Google Scholar

3 The possibility of interpretive radiation is not contradicted by sec. 10 of the law, according to which “Nothing in this Basic Law affects the validity of law that existed prior to the coming into force of this Basic Law”.

4 Barak, supra n. 1, at 20–22.

5 See the position of the judge in a dialogue with the criminal in Arenella, P., “Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral Accountability” (1992) 39 U.C.L.A L.R. 1511, 1544–1608.Google Scholar

6 Abu Rabia v. Attorney General (1963) 17 P.D. 2913, 2934.

7 Amelung, K., “Zuir Krilik des kriminalpolitischen Strafrectasystems von Roxin” in Grundfragen des modernen Strafrechtssystems (Berlin, B. Schuenemann, 1984) 85.Google Scholar

8 However, the commitment to freedom of expression is not the sole consideration, and one has to also consider whether acts, including acts of expression, violate human dignity.

9 Dan-Cohen, M., “Responsibility and the Boundaries of the Self” (1992) 105 Harv. L.R. 959.CrossRefGoogle Scholar

10 Attorney General v. Greenwald (1958) 12 P.D. 2021.

11 As well as the position that in general preparation is not culpable.

12 If the goal was to make it possible to achieve such a prohibition. In the meantime the Knesset has abolished this prohibition.

13 For example: Immunity of the rescuer against a claim in torts on the harm that he may have caused in the process of rescue; the rights of the rescuer to receive compensation for harm that may have been caused to him or any expenses that he may have incurred during the rescue operation, and even, awarding the rescuer. See Yadin, U., “The Bad and the Good Samaritan” (1970) 2 Mishpatim 252.Google Scholar

14 There is, of course, an influence of the criminal prohibitions on the socio-moral consciousness, but obviously they are not identical.

15 Kremnitzer, M., “Interpretation in Criminal Law” (1986) 21 Is.L.R. 385.Google Scholar

16 Karp, Yehudit, “Basic Law: Human Dignity and Freedom — A Biography of a Power Struggle” (1993) 1 Law & Government 323, 345, 361Google Scholar; A. Barak, supra n. 1, at 253, 261.