Some reflection on the relation between form and substance in criminal law
Jan M. Reijntjes
In the last thirty years interest in the procedural aspects of law has grown tremendously. Nevertheless most authors see procedural law as subordinate to substantive law. In their view, the primary goal of criminal procedure is to facilitate substantive criminal law. Although in itself this view can be defended, this prevailing approach obscures the fact that the content of the norms, embodied in substantive law, partly depends on formal law, in particular the law of evidence. The significance of such norms in everyday life is determined to a large degree by the possibility of proving that they have been violated. If violations cannot be proved, they will go unpunished, with the consequence that no matter how strongly the norm may be embedded in public opinion, it will gradually lose its force.
In this paper an abstract reflection on the character of criminal law will demonstrate why in certain respects formal law takes precedence over substantive law, and why sometimes it does so dramatically (part I). Then the concept of intent will be used as an example to show how this can work out in practice (part II).
I The 'raison d' être' of criminal procedure
Is criminal law meant to punish sinners? Is that the reason it has been created? I don't believe so. One should clearly distinguish between punishing, as a human act, and the rules and principles of law that govern this activity. The aim of punishing people - no matter whether those aims have a repressive or a preventive character - are quite different from the reasons why punishment is regulated by law. It is no accident that criminal law came into existence; criminal law was created on purpose. This was not done to make it possible to punish; any more or less absolute ruler can (and probably will) punish without, or even in violation of criminal law. It cannot even be said that the norms that are embodied in substantive law are created by law. In principle, they are moral categories and as such are ' above the law'. They may be maintained by law, but can also be maintained in other ways. If maintained by law, in many cases they may be maintained by criminal, but also by private and/or administrative law.
What then is the quintessence of criminal law? Criminal law - as law - was created to protect the citizen against wrongful punishment. It is no accident that criminal law as a distinct field of law appears around the same time as public government. Criminal law is intended to protect the citizen against wrongful punishment, not by his fellow citizens, but by public government. Nor is it an accident that the concept of punishment itself is restricted to activities of public government. According to criminal law private punishment is no punishment!
How does criminal law protect the citizen against the public government? In the first place by creating an implicit rule or principle: punishment is only acceptable as a reaction to human behaviour (acts or omissions). Bad inclinations alone are never sufficient reason for punishment. Why? Probably because bad inclinations cannot be