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Constitutionalization of Substantive Criminal Law: A Realistic View

Published online by Cambridge University Press:  04 July 2014

M. Kremnitzer
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Extract

The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.

To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.

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Articles
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Israel Law Review , Volume 33 , Issue 3 , Summer 1999 , pp. 720 - 728
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1999

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References

1 See examples, infra, at 5-6.

2 See, for example, Modi'im company Ltd. v. The State of Israel (1991) 45(iv) P.D. 364, at 393-402; Azulai v. The State of Israel (1983) 37(ii) P.D. 565, at 578-588. For criticism: Feller, S.Z., “The Establishment of Negligence Offence by Case-Law — An Alien Category”, (1987) 12 Iyunei Mishpat 581Google Scholar; See also Mizrahi v. The State of Israel (1981) 35(iv) P.D. 421, at 424-427. For criticism: Kremnitzer, M., “Escape From Lawful Custody – by Omission? – Further Comment”, (1984) 10 Iyunei Mishpat 195Google Scholar.

3 An opposite trend can be detected in the Israeli reform of the general part of its Criminal Code (the 39th Amendment to the Penal Law). This trend includes, inter alia, abolition of absolute liability and its replacement by strict liabilkity, opening a possibility for a quasi individual criteria in negligence, a broad scope of necessity and duress.

4 See also Kremnitzer, M., “Forty Years of Criminal Law — Further Comments (In Response to Dr. Gur-Arye)”, (1990) 24 Is. L.R. 580, at 585Google Scholar.

5 Kremnitzer, M., “Constitutional Principles and Criminal Law”, (1993) 27 Is. L.R. 84, at 91Google Scholar.

6 See Kremnitzer, M., “Interpretation in Criminal Law”, (1986) 21 Is. L.R. 358, 367, 370, 373Google Scholar. See also supra n. 1.

7 The State of Israel v. Kahana (1995) (D.C. Tel-Aviv, unpublished).

8 Unnamed v. The State of Israel (1997) 51(iii) P.D. 388, 408.

9 Sec. 20(b) of the Penal Code, 1977: “As for intent, seeing ahead the occurrence of the consequences, as a near probable possibility, is equivalent to a purpose to cause them”.

10 Elba v. The State of Israel (1996) 50(v) P.D. 221, at 304-305. On the other hand, it should be mentioned that some of the judges interpreted the actus reus of the incitement to racism offence in a restrictive way, as requiring that the publication have linkage to the theme of racism. See Kremnitzer, M. “The Elba Case — The Law of Incitement to Racism”, (1999) 30 Mishpatim 105, at 114Google Scholar.

11 Rawls, J., A Theory of Justice (Cambridge, Mass., 1971) 3–4Google Scholar.

12 Ibid., at 242.

13 A.D.A 10/94 Unnamed v. The Minister of Defense (unpublished). In the meantime, the Supreme Court changed its decision in a further hearing (7048/97) Anonymous v. The Minister of Defense. The new decision is welcome. It does not weaken the criticism of the previous decision.

14 See Kremnitzer, M., “The Landau Commission Report — Was Security Service Subordinated to the Law, or the Law to the ‘Needs’ of the Security Service?”, (1988) 23 Is. L.R. 216, at 248, 266Google Scholar.

15 H.C. 5110/94, 4054/95, 6536/95, 5188/96, 7563/97, 7628/97, 1043/99 Public Committee Against Torture in Israel v. The State of Israel (unpublished), para. 23.

16 Supra n. 5, at 86-87, 90.

17 (1998) S.H. 1670.

18 The Law for Prevention of Sexual Harassment, 1998, S.H. 166. Sec. 3(3)-3(5) define verbal sexual harassment; sec. 5 establishes the offence, and sec. 6(b) establishes the compensation for the civil tort.

19 Ganimat v. State of Israel (1995) 49(iv) P.D. 621.