Today is a day of celebration for Israeli law. It is a celebration in honour of a man, Professor Feller, on his eightieth birthday, and a celebration in honour of a book, Elements of Criminal Law, upon the publication of its third volume.

A story is told about Chief Justice Cullen of the New York Court of Appeals. It seems that when faced with a particularly hard case, after all the judges would express their views and no appropriate legal result would emerge, Judge Cullen would pound on the table and say: “Back to the books!” I shall therefore begin with the book.

Nearly fifteen years have passed from the time Professor Feller began the project to its completion. But, in truth, the project began some three decades earlier, when he began to research and teach criminal law. The book Elements of Criminal Law transforms Israeli criminal law from a practical field — the domain of judges and lawyers — to a scientific discipline.

I shall address two concerns in this paper: first, what retributivism is, and second, how one justifies retributivism as the only proper theory of punishment. Since this paper is necessarily short, treatment of these topics is likewise abbreviated, although hopefully not so abbreviated but that it whets the appetite for those who wish to pursue them in greater depth.

Retributivism is the view that we ought to punish offenders because and only because they deserve to be punished. Punishment is justified, for a retributivist, solely by the fact that those receiving it deserve it. Punishment of deserving offenders may produce beneficial consequences other than giving offenders their just deserts. Punishment may deter future crime, incapacitate dangerous persons, educate citizens in the behavior required for a civilized society, reinforce social cohesion, prevent vigilante behavior, make victims of crime feel better, or satisfy the vengeful desires of citizens who are not themselves crime victims.

In a number of related papers Michael S. Moore has advanced a powerful theory of retributive punishment. The position as stated is simple: “retributivism is the view that we ought to punish offenders because and only because they deserve to be punished”. Desert is a necessary and sufficient condition for just punishment. However simple and straightforward the view, it still needs to be defended and Moore has been energetic in defending his corner against traditional objections and against replies that his account has attracted since first publication. His latest effort invites readers to pursue these problems in still greater depth. This is an invitation I am happy to accept. First I want to reexamine the charge that there is circularity in his account and second, I want to look more closely at the intuitions which ground his acceptance of the principle of desert.

One worrying thought, for Moore, is that he may be begging the question. His argument proceeds by inviting us to consider a range of cases. In “The Moral Worth of Retribution” the focus is on a couple of savage murders. In “Justifying Retributivism” we are asked to practice Kant's thought-experiment: how should we deal with the last murderer before we leave the island; and ponder the fate of Dostoyevsky's nobleman who set his dogs to tear a child to pieces.

The term “guilt” connotes many different phenomena: theology, philosophy, ethics, psychology and law all contributed to the variety of connotations. It is not my purpose, nor do I pretend to engage in etymological or anthropological research into the evolution of the various aspects and concepts of guilt: I shall try to describe and distinguish only those phenomena of guilt of which judges may have to take cognizance for the proper exercise of punitive discretion.

First and foremost, there is “guilt” within the meaning of criminal law. On the one hand, guilt is spoken of as denoting the mental element in crime: the guilt of one who committed a criminal act — actus reus — presupposes the criminal mind — mens rea; or, an actus reus is transformed into guilt by the supervenience of mens rea. Whether the mens rea is intent or wilfulness, or only negligence or recklessness, does not affect the incidence of guilt, but may well raise the question of degree of guilt. On the other hand, “guilt” is the result of a verdict to the effect that the accused is criminally responsible (“finding of guilty”), and it is in this sense that the accused may “plead guilty”.

The enactment of Basic Law: Human Dignity and Freedom marks the beginning of a new era in Israeli law. This is a fitting opportunity to sketch an initial outline for the relationship between the constitution and the substantive criminal law, and the effect of constitutional principles on penal law. The truth be told, the constitutional principles already existed prior to the enactment of the Basic Law. And if, for example, we examine Prof. Feller's approach to criminal law, we cannot but be impressed by the highly developed constitutional element. Nevertheless, Basic Law: Human Dignity and Freedom does provide an excellent excuse for addressing the subject. Moreover, its enactment paves the way for certain interpretive changes in Israeli penal law, and because it allows for judicial review of the legislature of the future, some clarification is called for as to the limits of legislative power in the field of criminal law in light of fundamental constitutional principles.

Basic to constitutional law and criminal law is a shared image of human beings. It is a conception of human beings as “morally” autonomous, with the basic faculty to understand reality and distinguish right from wrong, able to contribute to developing social norms and to understand and internalize them, competent to decide how to act and capable of realizing that decision.

Finland, along with the other Nordic or Scandinavian countries, belongs to the so-called civil law tradition. Countries following this tradition include Denmark, Finland, Iceland, Norway and Sweden. All of these nations are advanced, industrialized welfare states. The Nordic countries have pursued economic, social and cultural development along similar lines, and have cooperated intensively in legal and political matters.

Various means of Nordic cooperation have been developed since the Second World War, and these interstate activities have become even more diversified since the 1960s. The objectives and organs of cooperation between the States were laid down in a special treaty signed in 1962. The treaty covers cooperation in the legal, cultural, social and economic spheres as well as in traffic and environmental matters. Efficient cooperation in criminal law is based on a variety of sources, consisting primarily of the treaties between the Nordic countries, multilateral European conventions, common basic approaches in crime control and human rights policies, uniform legislation in relevant areas, and established practice between state authorities.

The most remarkable feature of Scots criminal law is that it is still a common law system. It contains, of course, many statutory offences, mostly recent and concerned with the regulation of modern developments such as road traffic or wireless telegraphy. There are also a large number of statutory frauds, dealing with all kinds of things, such as companies, bankruptcies, the regulation of professions, etc., but many of those are unnecessary, in the sense that the behaviour they prohibit can be dealt with as common law fraud, which covers the achievement of any practical result. There are also some modern preventive crimes created by statute, such as carrying offensive weapons in public, but other preventive offences, such as housebreaking with intent to steal, were created by the common law. There are very few of what might be regarded as basic crimes which are statutory. The most striking example is the crime of incest which, until recently, was dealt with under the Incest Act of 1567, passed by the Scottish Parliament in the wake of the Reformation. The Incest Act incorporated the 18th chapter of Leviticus into the law of Scotland, and with some amendments, it remained the law until the passing of the Incest and Related Offences (Scotland) Act 1986. But that was an oddity, and there is some authority that parent-child incest is a common law crime. The basic crimes, such as those concerned with injuring the person or property of others, are essentially matters regulated by the common law, the creations of judges, without any statutory definitions, and all with the same maximum penalty of life imprisonment.

In this article, I will consider several of the general questions raised by the rule that has long guided Israeli courts when faced with a claim of irresistible desire. The claim can be portrayed thus: “Indeed, the defendant perpetrated the act constituting the offence, and did so consciously (as distinct from certain situations of automatism), while aware of the nature of his conduct and knowing that his conduct was unlawful (as opposed to instances of mistake of fact or law). However, although there was no justification for his conduct (as distinct from certain situations of necessity), he has an excuse in that the conduct was the result of a desire he was unable to resist”.

This claim may be employed as a defence intended to show that the defendant is not morally culpable for his conduct. But, in this article, I shall consider the claim of irresistible desire as a defence intended to exempt the defendant from criminal responsibility. The two are not necessarily related. Criminal responsibility — as opposed to moral culpability — is a function of law. And what the law establishes in one country may differ from what it establishes in another.

The derivative forms of criminal liability — attempt and complicity — are the subject of a vast literature, yet there has not been a systematic, comprehensive examination of the preparatory offences in legislation, case law, or even in scholarly writings. One can hardly even find a satisfactory definition of such offences. Therefore, our first task will be an attempt to provide one, because absent a definition, we will not be able to proceed toward a solution to problems that are of no insignificant practical importance.

First among these problems is the question of the appropriate legislative policy to be followed in deciding when and in what areas to create preparatory offences. Second comes the question of whether it is appropriate to “derive” offences of attempt and complicity from preparatory offences, or, in other words, is it possible to speak of attempting a preparatory offence or being an accomplice to it. Third, should we make recourse to the principles applicable to criminal attempt in construing preparatory offences?

1. Any doctrine or theory of criminal attempts must address a number of basic questions:

At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed?

What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient?

Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized?

Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt?

I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.

Some twenty years ago my imaginary character the “psychotic aggressor” made his debut in the pages of the Israel Law Review. Of all the hypothetical cases I have devised over the years, the story of the psychotic aggressor in the elevator, attacking someone who must defend herself, has become one of the most vigorous and long-lasting. This unlikely case has proven to be a useful medium for understanding the difference between claims of justification and claims of excuse in structuring criminal liability. Everyone assumes that the person attacked should be able to defend herself; the problem is whether the defense is right and proper (justified) or whether it is simply the human response and therefore free from blame (excused). This classification has implications, in turn, for whether third parties may come to the aid of the person attacked and whether the psychotic aggressor, in turn, has a right to defend himself against efforts to kill him. These issues have given rise to considerable debate over the last two decades, and much of it can be traced to the conundrum whether resisting a psychotic but purposeful aggressor should be treated as right in itself or, alternatively, wrong but free from blame.

Since 1946, the United Nations efforts to codify international crimes and to establish an international criminal court have overlapped, with scant results from either endeavor.

The Assembly began its efforts to codify international crimes in its first session when the United States sponsored resolution 95 (I), adopted on December 11, 1946, which affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”. Furthermore, the Assembly directed the Committee on the Codification of International Law, the International Law Commission's predecessor, to formulate a general codification of offenses against the peace and security of mankind.

In 1947, the United Nations established the International Law Commission (ILC). In a resolution again sponsored by the United States the United Nations directed the ILC to:

(a) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, and

(b) prepare a draft code of offenses against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above.

This paper is concerned with the alternative obligation to extradite or prosecute contained in multilateral treaties requiring suppression of “international offenses”. Such an obligation appears, for instance, in Article 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, and in provisions of other anti-terrorism treaties modelled on the Hague Convention. The first part of this paper considers the extent to which the principle underlying Article 7 of the Hague Convention has been incorporated into multilateral treaties; the second part, the question of the extent to which that principle can be regarded as a norm of customary international law generally applicable to “international offenses” even apart from the specific treaties in which it is embodied.

Broadly defined, “international offenses” are offenses on the part of individuals which states have an obligation, usually under a multilateral treaty, to proscribe or prosecute. Such offenses more or less coincide with those which Professor Feller designates as delicta juris gentium (although he further assumes that all such offenses permit the exercise of “universal jurisdiction”).

1. The principle of double criminality is traditionally bound with institutions of international criminal law. Double criminality is a requirement not only with extradition, but also with the transfer of criminal proceedings and with execution of foreign sentences. International criminal law employs a range of “double conditions”, the common denominator of which is the requirement that two legal systems share a certain set of values or legal prescriptions. In addition to double criminality, international law uses such terms as “double punishability”, the “double possibility of criminal proceedings” and the “double possibility of the execution of penal judgment”. Among these concepts, double criminality is the most important and universal condition applied in the basic institutions of international criminal law, such as extradition, the transfer of proceedings, and the execution of foreign penal judgments.

Extradition law and process is the complex vehicle for the return by one state of accused or convicted fugitives from the criminal justice of another state. From an international law perspective, it is for the most part, a treaty matter bearing on the rights and duties of states and the emphasis is on inter-state cooperation, reciprocity and mutuality of obligations. However, it is also part of the domestic criminal law process and as the result will be the potential or actual deprivation of the liberty or even the life of the fugitive, if the requesting state retains the death penalty, today extradition is seen as necessarily protecting the human rights of the fugitive.

The focus of this article is on the protection given to the fugitive by the double or dual criminahty rule under the extradition law of Canada. Two major issues will be analyzed. Firstly, whether the crime for which the extradition request is made by the foreign state is an extraditable crime meeting the requirement of double criminality and secondly, whether the extradition judge in Canada is mandated to inquire into and seek evidence of the foreign criminal law.

One of the most significant recent developments in the law of extradition is the serious consideration that courts are willing to display to the punitive consequences of an extradition order, if capital punishment is the specific penalty that the requested person is liable to have imposed on him if convicted. At the same time, this development serves also as one of the most dramatic examples of the manner in which the subject of human rights has become a factor in international relations, which nation-states can disregard only by exposing themselves to negative assessments linked to reluctance to respond to formal requests. For the most part the “linkage” has been focused mainly on economic aid, where donor countries would approve requested aid contingent on positive accounting in human rights, but now, as a result of a number of novel judicial decisions, it seems that similar factors will be examined, when requests for extradition are submitted. At the moment, the focus is on the use of the death penalty, but the very reasoning process used may well open up further possibilities.

Professor S. Z. Feller, to whom this article respectfully is dedicated, wrote a critical attack on the problem of concurrent criminal jurisdiction. The adverse consequence of more than one state claiming jurisdiction over a given criminal behaviour may be the abduction of the alleged offender by officials of one of these states. This issue was recently raised in the United States Supreme Court in the Alvarez-Machain case. Chief Justice Rehnquist's holding allowing a U.S. court to try Dr. Alvarez-Machain, who was abducted by U.S. authorities, caused vehement national and international criticism. Subsequently, the United States District Court of Los Angeles acquitted Dr. Alvarez-Machain on 14 December 1992.

The long list of abduction cases of recent history, together with the absence of a satisfying solution are alarming. I shall not attempt to cut this “Gordan's knot”, but rather shall focus on an issue that has as yet not been clearly addressed in the current debate.