The author briefly
presents an article
by Professor Ljubo Bavcon on the prob- lem of criminal responsibility,
originally published in 1959 in the Revija
za kriminalistiko in kriminologijo (Journal of Criminalistics and
Criminology). It offers a
comprehensive report from an international symposium in Stras- bourg, enriched
with Bavcon’s scientific credo regarding the issues discussed. The core of the discussed problem
was the clash between two views on crimi-
nal responsibility. The old view, also known as "classical criminal law”, was
based on a metaphysical notion of freedom, wherein a criminal offence was
perceived as the outcome of an individual’s free, albeit malevolent, will . The
response to this was punishment, intended both as a deterrent
and as a form of penance—a means to frighten and reform the perpetrator’s evil will. As a coun- terpoint to this classical
view, positivist views emerged, viewing
the individual as a product of heredity and environmental factors,
thus a deterministic entity.
By denying free will, these
perspectives also deny the concept
of culpability— yet they
acknowledge the necessity for society to defend itself against crimes and their
perpetrators. This defence
of society against
criminality is no longer
perceived as "deserved punishment” but rather involves various forms of treat-
ment of criminals and their removal from the environment. Bavcon’s perspec-
tives represent a compromise, somewhere
between the heritage
of the classical school and the new impulses brought by the New Social
Defence Movement. Although the ideas of abolishing the concepts of guilt and
deserved punish- ment fell silent in later developments of criminal law,
recently there has been a new rise of ideas to expel moralistic undertones from
criminal law, and to reorganise the operation of the criminal justice system
according to the prin- ciples of public health systems.
This suggests that the evolution
of criminal law occurs in cyclical phases.
Key words: criminal responsibility, criminal law, penal law, punishment, guilt, criminality.