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The Normative Baseline and (Freedom from) Criminal Responsibility: Comments on Jørn Jacobsen’s Power, Principle, and Progress
Marie Kagrell*
Introductory Remarks
Jørn Jacobsen’s Power, Principle, and Progress: Kant and the Republican Philosophy of Nordic Criminal Law (2024) invites us to ponder the normative justification of criminal law. It covers several defining questions for the extent and formation of criminal law in a republic order. These include the normative foundation of the state itself, state power, and legal reform, among others. I will focus mainly on Jacobsen’s work on the different functions of criminal law, especially in relation to what Jacobsen defines as the normative baseline for criminal law. These three functions are the declaratory function (issues of criminalization), the retributive function (issues of criminal responsibility), and the preventive function (issues of punishment as a means for action guidance). I believe that in addition to the themes and issues Jacobsen raises, further insight and understanding of the project of a republican criminal law can be achieved through an enhanced analysis of the rules about freedom from criminal responsibility.
Jacobsen’s Contribution in Context
I will begin with a few remarks on Jacobsen’s recent work in context, beginning with the author’s previous publications. A central claim (or even: the central claim) in Jacobsen’s new publication is that individuals’ right to external freedom constitutes the normative baseline for criminal law.[1] The concept of external freedom is understood, following Kant, as independence from being constrained by others’ choice—as long as such independence can coexist with the freedom of every other person in accordance with a universal law.[2] Thus, Jacobsen’s starting point for the framework of a legitimate criminal law is Kant’s political philosophy in a wider sense (rather than Kant’s more specific work on criminal law and retribution).
Kant as a point of departure for understanding the rule of law (the Rechtsstaat) is already present in Jacobsen’s earlier work.[3] The conception of the rule of law used there is closely connected to securing the autonomy of the individual,and Kant’s demand for respecting individuals as rational and autonomous beings gives a demarcation line for the Rechtsstaat.[4] Jacobsen’s established view is that the paradigmatic area of relevance for the criminal law is protecting the individual’s autonomy and that criminal law can only be legitimate if it has this purpose.[5] In Jacobsen’s recent work this tenet is spelled out a little differently: instead of a demarcation line for criminal law, the idea is that of a normative baseline for criminal law. This change could be merely terminological, but could also signal a shift from a formal to a (more) substantive view of the normative justification for criminal law.
I will also say something about Jacobsen’s recent work in the context of contemporary criminal law reform.[6] In discussing the declaratory function of criminal law, Jacobsen combines the tenet of the normative baseline for criminal law with premises of how criminal law works on distinct levels in the civil state to reach concrete conclusions concerning what types of acts should be criminalized.[7] This is a reasonable move; general reference to the harm principle or a violation of a legally protected interest (Rechtsgut) is undoubtedly too vague for interesting debate. The normative baseline—protecting individuals’ external freedom—is thus combined with the three layers of criminal law: the individual layer, the public layer, and the authority layer.[8] This allows Jacobsen to thematically group specific offenses into three families of offenses, namely:
- Direct violations of the individual’s right to external freedom (e.g. murder, deprivation of liberty).
- Infringements of the right to external freedom in terms of public nuisances (e.g. misuse of public spaces, public disorder).
- Violations of the state’s institutional framework in place to guarantee the individual’s freedom (e.g. treason, threatening judges).[9]
Apart from providing a normative basis for when criminalization is justified in abstracto, such categories have analytical value for the types of offenses actually in place at a given point in time, and can also be useful in normative evaluation of the currently valid law. Contemporary criminal law reform is, as Jacobsen notes, fragmented and normally addresses a specific social problem relevant to the normative baseline for criminal law.[10] As an example, Sweden has seen an almost frantic legislative pace in its criminal code concerning offenses against liberty during the past twenty years. These highly fragmented reforms cover criminalization of a number of action types that are considered direct violations of the individual’s right to freedom (the first category above). I believe they can be further divided into offenses against the individual’s liberty in terms of freedom in the negative sense (as non-interference), on the one hand, and freedom as non-dominance, on the other.[11] It is, perhaps, not a given that both these freedom conceptions are relevant for the normative baseline for criminal law. An interesting line of inquiry for the future could therefore be how extensive the first category for legitimate criminalization should be.[12] Should it be limited to the negative conception of freedom or include also freedom as non-domination?
The Three Functions of Criminal Law and the Doctrine’s Neglect of One of Them
As noted at the outset, Jacobsen analyzes the functions of criminal law with regard to its normative baseline in a trifold division: the declaratory, the retributive, and the preventive function, respectively. This division partly maps onto other analyses of the function of criminal law advocated in Nordic doctrine.[13] I believe Jacobsen’s three functions of criminal law can be described as answering three separate questions: what to punish (the declaratory function; which acts in abstracto to criminalize), whom or when to punish (the retributive function; which actors and which concrete circumstances warrant blame), and why punish (the preventive function; promoting compliance with the law and choosing criminal law over other means available to the civil state).
When the legitimacy of criminal law is discussed in Nordic criminal law doctrine, it is most often angled towards either the question of what to punish or the question of why punish.[14] The first question is treated in the literature on criminalization principles.[15] The second is mainly discussed in terms of the purpose of criminal law and is regularly given some room in textbooks as well as monographs.[16] Only seldom is the issue of legitimacy and normative discussion aimed at when to punish; that is, the rules and doctrines of what constitutes an unlawful act and individual responsibility. In the (somewhat rare) exceptions from this rule, writers tend to focus on the principle of conformity, matters of intent, or (un)accountability.[17] Many rules that together make up the doctrines of responsibility therefore remain out of the limelight of criminal law doctrine.[18]
As a result, the discussion of republican criminal law, as well as normative reasoning in general, is underdeveloped in relation to the (many) rules and constructions that make up criminal responsibility. This is puzzling, considering how the grounds of freedom from responsibility are generally described in Nordic scholarship, especially the rules about self-defense, necessity, official use of power and consent (in Nordic doctrine often called objective grounds for freedom from responsibility or justifying conditions). The reason for excluding responsibility in these cases is, for example, explained as follows: there is no ground for the legal order to counteract the deed and therefore the deed is not unlawful; the deed is justified; the deed is not contrary to the legal order. Such expressions make it clear that the objective or justificatory grounds have their normative basis in a relation between the state and its citizens. However, the details of this relation are seldom subjected to thorough analysis.
The work done in the Nordic literature on the principle of conformity and personal responsibility cannot adequately be stretched to cover also these objective grounds for freedom from responsibility. The principle of conformity states that responsibility should not be attributed to the person who could not abide by the law—but this rationale simply does not apply in, for example, cases of self-defense. In such cases, the person could, of course, abide by the law by omitting to defend themselves and simply be harmed or killed. Another reason that objective grounds are not adequately covered by the principle of conformity is a conceptual or systematic one; if the idea is that the justifying conditions make the deed not-unlawful, it cannot coherently be said about a person acting (justifiably) in self-defense that they do not abide by the law. The rationale simply does not fit.
Thus, it is a most welcome and important contribution that the separate functions of criminal law are so clearly spelled out and also individually connected to the normative baseline for criminal law in Jacobsen’s work. There is quite a lot of important work to be done in this field, giving special attention to the prerequisites for criminal responsibility—rather than criminalization in general and the issues of “why punish” in general.
Justifying Circumstances at the Heart of the Republican Criminal Law?
Let me now turn to the specific topic of Jacobsen’s analysis of the retributive function of criminal law,[19] and an interesting area or aspect of this analysis that I believe can benefit from a more thorough investigation. The issue concerns the objective grounds for freedom from responsibility (justifying circumstances). My point is that an analysis of these grounds can better help us understand the role and power of the state. I will focus on self-defense as a paradigmatic example of criminal law regulation in accordance with its normative baseline.
In his analysis of the principles for the republic’s constitution, Jacobsen argues on a general level that the criminal law is an “intrinsic part of the self-constitutionalizing of the republican state” and that criminal law plays the part of “working out and making concrete the system of rights that are at the heart of the republican state.”[20] Jacobsen then argues, on the more specific issue of criminal responsibility, that it
aims to identify violations of the baseline by rational agents that stand in this constitutive relation to the civil state itself. This gives rise to the mentioned principle of guilt as the overarching principle for the doctrine of criminal responsibility, which in turn gives rise to a set of more specific (categories of) criteria for such responsibility.[21]
For responsibility in general, what criminal law should aim to punish is individual persons’ willful violation of the baseline of the state that they are also a part of. The specific categories for criminal responsibility are then described as lack of actual violation of the interest protected by the statute (for example, consent); justifying conditions; excusing conditions; and external, non-guilt-oriented reasons.[22]
The overarching principle of guilt is at the core of Jacobsen’s analysis of criminal responsibility—little attention is given to justifying conditions. However, and connected to what I have argued above, the principle of guilt mainly concerns the (absence of) willful violation of the normative baseline. It is less apt to cover cases where there is no violation of the normative baseline. The rationale behind the principle of guilt simply does not fit for the first two categories Jacobsen describes (lack of actual violation and justifying conditions). I believe that further attention should be given to the workings of these categories; it would enhance our understanding of republican criminal law.
Let us look more closely at self-defense. It can be argued that the legal doctrine of justified self-defense is, in Nordic criminal law, constituted so as to not include a violation of the normative baseline. The statutes regulating self-defense have as a prerequisite that self-defense is performed against an unlawful act (e.g. a criminal offense against the person). Thus, built into the very legal concept of self-defense is a prior violation of the normative baseline of criminal law on the attacker’s side. The attacker lacks, due to their unlawful attack, the right they would otherwise have against violence or harm. Thus, the attacked commits no violation of the attacker’s right to external freedom when acting in self-defense.[23] Granted, Jacobsen does discuss self-defense, but as an institute, the extension of which changes in accordance “to the state’s position as power holder”, where—in the absence of a power monopoly—self-defense has been understood as a private defense.[24] Self-defense is not primarily analyzed in terms of criminal law’s function of ascribing criminal responsibility.
In contrast, I believe that self-defense should be understood as central for the republican order, in “working out and making concrete the system of rights that are at the heart of the republican state,” rather than as an exception from it. Rather than acting in a state of nature, the attacked is acting in a legally justified manner since the act protects their right to external freedom from a violation of it. (Here I will mention, but not elaborate on the point, that the analysis of self-defense also could benefit from a discussion of whether external freedom ought to be understood in the negative sense—as non-interference—or in terms of non-dominance.)
My claim is this: if individuals in the republican civil state are rational co-legislators of its criminal law, it seems perfectly reasonable to view such individuals, when they are acting in self-defense, as acting not in a private sphere nor in a state of nature, but rather in the very arena that belongs to the republican state’s criminal law (namely protecting the external freedom of individuals against others’ unlawful aggression). In other words, acts of legitimate self-defense protect the normative baseline for criminal law; and understanding the institute of self-defense is central to understanding a republican criminal law.
* Department of Law, Stockholm University. Thank you to Erik Svensson and Åsa Burman for comments on earlier versions of the text.
[1] Jacobsen states: “Violations that strike at the heart of the right to external freedom and its protection by the civil state fundamentally fail to respect public justice and should therefore be targeted by the criminal law.” See Jørn Jacobsen, Power, principle, and progress: Kant and the republican philosophy of Nordic criminal law, 2024, p. 235.
[2] See Jacobsen, 2024, p. 126 and 194–195. For a discussion of different interpretations of the Kantian concept of external freedom, see e.g. Katrin Fliksuch, Kant and modern political philosophy, 2000, p. 80–112. See also Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy, 2009, e.g. p. 13–19 and 240–243.
[3] See Jørn Jacobsen, Fragment til forståing av den rettsstatlege strafferetten, 2009, p. 467–475, also with a justification of this choice (see especially p. 471–475) and discussion of potential objections. See also Jørn Jacobsen, ‘Constitutions and Criminal Law Reform’, Bergen Journal of Criminal law and Criminal Justice, 2017, p. 18–36, where individual autonomy is the underlying paradigm for discussion of constitutional and criminal law reform.
[4] See Jacobsen, 2009, on e.g. p. 402, 416, 472–473 and 476–491.
[5] See Jacobsen, 2009, p. 563–583.
[6] For Jacobsen’s contribution to research about law reform in a wider context, see Jørn Jacobsen, Legal reform research: groundworks for legal scholarship, 2022.
[7] See Jacobsen 2024, p. 215–224, especially on p. 220.
[8] See Jacobsen 2024, p. 221.
[9] Jacobsen, 2024, p. 235–236.
[10] Jacobsen, 2024, p. 276.
[11] See the Swedish Criminal Code, e.g. chapter 4 section 6 c (unlawful breach of privacy) and chapter 4 section 1 b (human exploitation).
[12] Developing specific criminalization principles is outside the scope of the work under consideration, see Jacobsen, 2024, p. 235–236.
[13] Several scholars have argued that the justification and purpose of criminal law must be treated at three levels: criminalization; sentencing; and execution of sentence, see e.g. Dan Frände, Allmän straffrätt, 3 ed., 2004, p. 20–30; Petter Asp, Magnus Ulväng & Nils Jareborg, Kriminalrättens grunder, 2 ed., 2013, p. 30–32, 36.
[14] See e.g. Alf Ross, Forbrydelse og Straf: analytiske og reformatoriske bidrag til kriminalrettens almindelige del, 1974, p. 100 – 117, especially p. 11 by note 3 and 4; Asp, Ulväng & Jareborg, 2013, p. 32–36.
[15] See e.g. Johs. Andenæs, Straffen som problem, 1994, p. 63–86; Jareborg, Allmän kriminalrätt, 2001, p. 45–65 and Claes Lernestedt, Kriminalisering: problem och principer, 2003.
[16] See e.g. Carl Torp, Den danske strafferets almindelige del, 1905, p. 12–25; Johs. Andenæs, Georg Frederik Rieber-Mohn & Knut Erik Sæther, Alminnelig strafferett, 6 ed., 2016, p. 66–75; Morten Holmboe, Fengsel eller frihet, 2016, p. 39–91 and Axel Holmgren, Straffvärde: som rättslig konstruktion, 2021, p. 64–106.
[17] See e.g. Andenæs, 1994, p. 87–97 and 99–113 and Jacobsen, 2009, p. 542–558 and 543.
[18] There are exceptions, see e.g. Dan Frände & Claes Lernestedt, ‘Nödvärn i Sverige och Finland – några utsnitt’, Svensk juristtidning, 2021, p. 767–812.
[19] This theme is discussed in Jacobsen, 2024, section 8.3., p. 242–263.
[20] See Jacobsen, 2024, p. 208.
[21] See Jacobsen, 2024, p. 249.
[22] See Jacobsen, 2024, p. 250–252. Interestingly enough, consent is connected directly to the legally protected interest and not, as is common in Nordic doctrine, to the grounds for freedom from responsibility. This is a reasonable classification indeed; when there is consent, there is not even a prima facie violation of the interest in question.
[23] There are caveats to this proposition. First, all Nordic jurisdictions demand that the attacked person does not act excessively. Second, there are variations among the Nordic jurisdictions, for example Finland (but not Sweden) demands that the person acting in self-defense is also aware of the fact that they are in such a situation.
[24] See Jacobsen, 2024, p. 201 and footnote 509. See also p. 243–344 and footnote 609. Legitimate self-defense and the state’s power monopoly can be discussed in tandem even if self-defense is not considered a private defense. In that case, self-defense can be understood as a matter of distribution of the execution of the state’s power between the state’s officials and citizens. Cf Lernestedt, ‘Är vi alla funktionärer?’ in Festskrift till Karsten Åström, 2016, p. 331–351.
Suggested Citation: Marie Kagrell, “The Normative Baseline and (Freedom from) Criminal Responsibility: Comments on Jørn Jacobsen’s Power, Principle, and Progress,” MCLR+ (crimlrev.net) (Sept. 30, 2024) (https://crimlrev.net/2024/09/30/the-normative-baseline-and-freedom-from-criminal-responsibility-comments-on-jorn-jacobsens-power-principle-and-progress-marie-kagrell/) [➡︎ pdf]