conduct rightly ought to be considered criminal and how the subsequent imposi-
tion of punishment can be justified (in a given society). The choices made on this
fundamental level will strongly determine the general attitude and stringency of
a criminal justice system. Although every European country has its own legal
culture, each system may be understood as a “local” answer to some “universal”
questions that constitute the doctrinal foundations of criminal liability.
One of these fundamental questions is how to conceptually relate the objec-
tive and subjective elements of a criminal offense, in other words, how to
connect the act requirement, which is related to the principle of harm, with the
requirement of a specific state of mind, which is related to the principle of guilt.
We have seen that common law systems, such as England and Wales, use a
bipartite structure of crime, whereas most civil law systems, such as Germany
and the Netherlands, prefer three rungs on the ladder of criminal liability. On one
hand, this striking difference has definitely its consequences for the categoriza-
tion of certain concepts, such as blameworthiness, or for the differentiation of
defenses; on the other hand, one should not forget that the practical outcomes
may not always be that different. Nevertheless, conceptual distinctions are
sometimes of great importance as they may reflect fundamentally different
choices regarding the conditions of criminal liability. A good example is how
the English system uses a more fine-grained tripartite system of fault, instead of
merely distinguishing intention from negligence, which has resulted on the
continent in often unclear and debatable distinctions between the lowest form
of intent and the highest form of negligence.
In the last part of the chapter, we have focused on the enforcement of
substantive criminal law through the criminal process. The purpose of the
process is to officially establish the guilt of an accused with the related
consequences and also to ensure that innocent people are not unduly convicted.
We have seen that different legal systems are based on different historical
models and cultural traditions. Nevertheless, all systems present a common
bipartite structure (investigations and trial), and they share some common
general principles. All of the basic principles of the process concern the protec-
tion of individuals (suspects, defendants, or third parties) in front of the state’s
power to enforce criminal law. No matter what function we ascribe to the
substantive provisions of criminal law, a democratic state must ensure that the
criminal enforcement does not run counter to the liberties of the individuals. A
crime-free society with no liberties remains a worse choice than a society
affected by crime but able to enjoy its natural freedoms.7 Criminal Law 155