The tension between legal theory and policy considerations in the general principles of criminal law

• Jurisdiction: South Africa
• Date: 15 August 2019
• Citation: 2003 Acta Juridica 1
• Pages: 1-22
• Published date: 15 August 2019
• Author: CR Snyman

Part A

GENERAL PRINCIPLES OF CRIMINAL

LIABLILITY AND SPECIFIC OFFENCES

The tension between legal theory and policy

considerations in the general principles of

criminal law

C R SNYMAN*

University of South Africa

I INTRODUCTION

Law is the expression of an artif‌icial logic, and this is particularly

evident in the f‌ield of substantive criminal law. Rules of law, and

particularly those relating to criminal law, seldom, if ever, consist entirely

of a purely logical application of a premise. There is always a tension

between two forces: namely, f‌irst, abstract theory, adherence to legal

dogma or systematic reasoning; and, secondly, the concrete or practical

demands of social reality, pragmatism or policy considerations.

This tension is largely also a tension between subjectivism and

objectivism. By ‘subjectivism’ is meant the approach to criminal liability

which places the emphasis on the subjective considerations pertaining to

the individual offender, and by ‘objectivism’ the approach which

emphasises the expectation of society that the conduct of individuals

should conform to certain basic standards, in order to ensure that society

operates peacefully and that justice between individuals or between an

individual and the state is upheld.

The purpose of this chapter is to consider some of the most important

points of tension between legal theory and policy considerations within

the framework of the general principles of South African criminal law.

Most topics deal with aspects of the culpability element, because it is in

this element of liability that the debate between subjectivism and

objectivism is particularly evident. Subjectivism often f‌lows from the

*BA LLB (UOVS);LLD (UOVS); Professor of Criminal and Procedural Law, University of

South Africa, Pretoria.

1

2003 Acta Juridica 1

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dictates of criminal-law theory, and objectivism often, if not mostly, from

policy considerations. The tension between subjectivism and objectivism

is particularly evident in the rules relating to the defence of provocation.

The recent judgment of the Supreme Court of Appeal in Eadie

1

highlights this tension. Later in this chapter this decision will come under

close scrutiny.

Up to around 1950, subjective considerations pertaining to criminal

liability played a subordinate role in the construction of criminal liability

in South Africa. The subjective test for intention only developed in the

course of the 1950s.

2

From about this period it became clear that the

courts regarded the test for determining intention to be purely subjective:

in murder cases, for example, the question was no longer whether a

reasonable person in the position of the accused would have foreseen that

the act might lead to the victim’s death, but whether the particular

accused, in the light of all his personal characteristics such as intelligence

or lack thereof, degree of intoxication, any possible degree to which he

might have been provoked, his age and sex, had in fact appreciated the

possibility that death might ensue.

3

II THE INFLUENCE OF THE BOOK BY DE WET AND

SWANEPOEL

The introduction into South African criminal law of an emphasis on

subjective considerations in the construction of criminal liability owes

much to De Wet and Swanepoel’s textbook on criminal law, and more

particularly De Wet’s exposition of, and comments on, the general

principles of liability. The f‌irst edition of this work was published in 1949

under the title ‘Strafreg’.

4

In expounding the general principles, De Wet

not only consulted writings on Roman and Roman-Dutch law, but was

also strongly inf‌luenced by continental European literature on criminal

law. He relied extensively on German authors such as Von Liszt-Schmidt,

von Hippel and Beling, as well as on Dutch authors such as Zevenbergen,

von Hamel, Pompe and Vos.

5

These authors belonged to a school, later to be referred to as the

so-called ‘classical school’, which was very inf‌luential during the latter

half of the nineteenth century and at the beginning of the twentieth

century.

6

According to this classical school, a sharp distinction is made

1

2002 (1) SACR 683 (SCA).

2

See, for example, R v Huebsch 1953(2) SA 561 (A) at 567; R v Du Randt 1954 (1) SA 313

(A); R v Nsele 1955 (2) SA 145 (A).

3

See, for example, S v Mini 1963 (3) SA 188 (A); S v De Bruyn 1968 (4) SA 498 (A) at

507–8; S v Sigwahla 1967 (4) SA 566 (A) 570.

4

J C de Wetand H L Swanepoel Strafreg (1949).

5

De Wetand Swanepoel (n 4) 15–6.

6

H-H Jescheck Lehrbuch des Strafrechts Allgemeiner Teil5ed (1996) 201–3.

2CRIMINAL JUSTICE IN A NEW SOCIETY

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