The Formulation of Voluntary Intoxication in Continental Law

Abstract

The principle of contemporaneity, which means the actus reus and mens rea must coincide, constitutes the backbone of criminal liability. On the contrary, it is sometimes possible for an offender to commit an offence when she or he does not have the culpability required for the committed offence. The offender can create diminished responsibility through the intake of an intoxicating substance negligently or intentionally, even with the purpose of getting rid of the punishment. To punish such an offender, a legal concept has been developed which is termed as voluntary intoxication in the Anglo-Saxon legal system, while it has been called actiones liberae in causa in the Continental Europe. In this review, actiones liberae in causa, the formulation of voluntary intoxication in the Continental European legal system, will be explained in detail and some suggestions will be made for the application of these two concepts.

Keywords

culpability criminal liability intoxication committing offences punishment

Introduction

Culpability, which forms the basis of criminal liability, is one of the most discussed topics of criminal law. In modern criminal law, culpability is the essential element to hold someone criminally liable for her or his actions. This matter is stated as actus reus non facit reum nisi mens sit rea and briefly referred to as mens rea. Under normal circumstances, an offender must be culpable at the time she or he commits the criminal action. If they do not occur simultaneously, at least they must be in tight temporal relation (Dimock, 2011), and this is called the principle of contemporaneity.

On the contrary, it is possible for someone to commit an offence under the influence of self-induced intoxication. Such action may be done negligently or intentionally, even within a plan of avoiding the punishment. In such cases, strict adherence to the principle of contemporaneity may lead to impunity, because it is possible for the offender to claim irresponsibility due to not having the culpability required for the offence. Of course, such an approach will cause a result incompatible with a basic sense of justice. For this reason, through development of exceptions to the general rules, with the aim of creating an opportunity of punishment for such offenders, voluntary intoxication and actiones liberae in causa (actions which are free in their origin) were developed. Because of the common basis of these two legal concepts, it would be useful to explain one with reference to the other one and make a comparison. This comparison will be beneficial for both of them, as it will be understood from the suggestions offered in this review, soon these concepts will, presumably, need each other’s methods of assessment related to criminal liability.

Actiones liberae in causa (hereinafter alic) was born in Germany, and even today it is being discussed there extensively. Various theories are put forward to explain its legal basis, and it has been discussed in several court decisions, although the German Criminal Code (StGB) does not recognize alic. Nevertheless, the application of the concept of alic, without having a statutory provision, violates the principle of legality of the German constitution. For this reason, German scholars took on the task of creating formularies which authorise punishment based on the concept of alic without violating principles of legality, contemporaneity, and culpability.

The general approach in German criminal law is to extend the criminal liability of the offender from the time she or he intoxicates herself or himself until the time she or he commits an offence with impaired culpability. Thus, the offender can be held liable for the result owing to the action of initiating the chain of causation (causal sequence of events; Hettinger, 1988; Katz, 1999).

Alic is also sometimes described as a modus operandi, that is, a special method of committing an offence (Streng, 1994). For this reason, although it is not compatible with some basic principles of criminal law, its application is broadly recognized in criminal law systems (Kuhn-Päbst, 1984; Satzger, 2006). It is not only adopted in Turkish and German criminal law systems, but also generally accepted in the Continental European countries. In terms of the Anglo-Saxon legal system, since having common ground with alic, voluntary intoxication has almost the same meaning.

What is desired to be done by this review is to examine both the Continental European and the Anglo-Saxon legal systems to develop some ideas about how to punish self-induced intoxicated offenders without violating legal principles and make some suggestions for the situations which may occur in the future. To achieve this, first, basic knowledge on voluntary intoxication will be discussed, and second, some explanations on the concept of alic will be clarified. After examining German and Turkish criminal law systems in terms of alic, the following section will be focused on some problems that may soon require consideration related to the voluntary impairment or mitigation of culpability in light of current developments in biotechnology.

Basic Principles of Voluntary Intoxication

Definition of Voluntary Intoxication

Voluntary intoxication is described as the intoxication resulting from the consumption of substances, a person knew or ought to have known as intoxicants, and that she or he knew or ought to have known might cause impairment (Dimock, 2011). In this context, intoxicants are construed broadly and include not only alcohol, but also controlled substances and illegal drugs (Brooks, 2015). Thus, voluntary intoxication covers the range of states between two endpoints in the degree of drunkenness, the first in which the offender is only slightly intoxicated, such that her or his culpability is not affected and the second, where the offender loses her or his consciousness and falls into a coma (Hall, 1944).

It is stated by some scholars that in the Anglo-Saxon legal system, voluntary intoxication is being handled in a very different way when compared with the Continental European legal system, and the Anglo-Saxon conceptualization of voluntary intoxication does not contribute to the discussions about alic (Krause, 1966). Nevertheless, the position is debatable, because what is emphasized in both systems is the voluntary nature of intoxication, and this makes these two concepts have analogous characteristics.

In the Anglo-Saxon law, voluntary intoxication is not accepted as an excuse for avoiding criminal liability due to the freedom of choice of being drunk or not (Stannard, 1982). On the contrary, involuntary intoxication, which happens despite the offender’s will, operates to excuse criminal liability in almost all legal systems. In the early period, the first case in American law related to our topic was the case of Res Publica v. Weidle, which dates back to 1781. In its opinion in that case, the court emphasized that being drunk did not constitute an excuse and should not be assessed to create an open door for committing offences (McCord, 1990).

According to common law jurisdictions, even though an offender is criminally liable in cases of self-induced intoxication, intoxication itself does not constitute a separate criminal offence. When a self-induced intoxicated offender commits an offence afterwards, to hold her or him criminally liable, she or he must have the required mens rea, not merely in respect of becoming intoxicated, but also in respect of those further consequences which make up the actus reus. It should be noted that English courts, following their own law, focus on a different point based on public policy concerns related to dangerousness of the offender and generally impose strict liability for the consequences of voluntary intoxication (Simester et al., 2019).

Distinction of Specific Intent–General Intent

The development of the distinction of specific intent–general intent has been the dominant approach in common law countries for two centuries. Prior to 1800, the common law never considered voluntary intoxication as a defence to crime; in fact, it was sometimes considered as an aggravating factor (Ferguson, 2012). Later, it was accepted by courts that an offender does not have the subjective state of mind due to a high level of voluntary intoxication, but on the contrary, this person deserves a punishment because of her or his actions.

The United Kingdom and the United States, both common law countries, have analogous rules on the assessment of voluntary intoxication and make a distinction based on the type of offence committed by the self-induced intoxicated offender. According to this distinction, voluntary intoxication is allowed to negate a specific intent (as is required for murder, for example), but is not allowed to negate a general/basic intent (as is required for manslaughter), nevertheless, in the United States, most of the criminal codes dropped this distinction as being too vague and unworkable and adopted the principle that voluntary intoxication is allowed to negate culpability levels of purposeful or knowing, but not the culpability level of recklessness (Robinson, 2018).

As stated above, in terms of common law systems, an intoxicated offender is regarded as incapable of forming specific intent. So, the position is clear if an offence is an offence of specific intent, but the important and more complex issue is to determine when an offence is an offence of specific intent. Majewski is the leading case related to this issue. Lord Elwyn-Jones, giving the judgment of the House, made an “intelligible” definiton and considered an offence of specific intent as an offence where mens rea extends beyond the actus reus (Simester et al., 2019). When an offender is in a position of self-induced intoxication, she or he casts off the restraints of reason and conscience, but her or his mind is certainly still functional for committing the offences of basic intent. In Lord Elwyn-Jones’s explanations, this situation was being associated with recklessness. As the outer limits of this form of recklessness have not been explored in the case law to date, this approach is regarded as inculpatory by some scholars (Simester et al., 2019).

Recently, according to some scholars, there is some evidence that the general intent-specific intent distinction in the U.K. law has evolved into essentially the U.S. distinction between offences of intention versus recklessness (Robinson, 2018). In fact, this distinction has been frequently criticised by courts, academics, and law reform bodies as being unprincipled, illogical, and arbitrary (Ferguson, 2012). The main reasons for these criticisms are grouped under four headings by Ferguson (2012) and are as follows:

1—The specific-general intent rule is considered both illogical and unprincipled by many judges and commentators, 2—The distinction is premised on linguistic manipulation of the definition or description of an offence, 3—It is difficult in some cases to articulate and apply the distinction between specific and general intent offences, 4—The specific-general intent rule is an inadequate compromise solution.

In general, it is possible to say that the ideas related to voluntary intoxication have started to change in common law countries. Beyond the distinction of general intent–specific intent, the analysis of intoxication as a defence in common law jurisdictions is now highly contested. Simester (2009) stated that although intoxication is sometimes thought of as a defence, it is an entirely different kind of doctrine, one that imposes constructive liability upon offenders. If this idea is adopted, this means closing the doors on the voluntary intoxication defence entirely.

Main Differences Between Voluntary Intoxication and Alic

Alic and voluntary intoxication have similar elements, since intoxication performed voluntarily is the keystone for both. Notwithstanding, they have some differences. The most important point about voluntary intoxication is the distinction made based on mens rea.

In common law practice, if the offence committed by the self-induced intoxicated offender is an offence requiring specific intent, then she or he can claim that the drunkenness prevents her or him from having a specific intent, thus avoiding criminal liability. However, this defence is not available for the crimes requiring general intent (S. M. Beck & Parker, 1966; Boettcher, 1987; Dix & Sharlot, 1996; Hallevy, 2015; McAuley, 1997; McCord, 1990; Murphy, 1972; Ormerod & Laird, 2017). In the Continental European law, however, no such distinction is made, and application of alic is the same for all kind of offences regardless of the type of intent (Bohlander, 2009).

Another difference between the two legal systems is the way of eliminating culpability. In the Anglo-Saxon legal system, it is accepted that what is expressed as voluntary intoxication is mainly caused by intake of alcoholic beverages or other substances which cause drunkenness (Daly, 1978), but in Continental Europe, impairment of culpability based on the offender’s own free will is enough and how it is done does not matter. Therefore, hypnosis, sleep, and other similar situations are also considered in this context, even though drunkenness may be the most preferred way.

Finally, an opinion in the Anglo-Saxon law should be mentioned which claims that being drunk and constituting a danger to the public should be accepted as a new crime (S. M. Beck & Parker, 1966). This idea means suggesting a provision similar to StGB §323a which will be explained later. At this point, it can briefly be mentioned that StGB § 323a itself is a very problematic article and is being severely criticised by scholars. Thus, it can be defensible to think that this opinion will not offer a satisfactory solution for the Anglo-Saxon legal system.

Overview of Actiones Liberae in Causa

Philosophical Foundations of Alic

Although actiones liberae in causa is a relatively new expression, it is quite an old problem how to consider the criminal liability of a person who violates a legal norm through committing a wrongful action when she or he is irresponsible (Fischer & Rehm, 1996; Kuhn-Päbst, 1984). Especially due to the widespread usage of alcohol, to hold drunken offenders liable for the harm they have done, it became accepted that culpa in the former action of the offender should be taken as the basis of criminal liability (Hettinger, 1988; Neumann, 1993; Stühler, 1999).

The philosophical foundations of alic were laid down by Aristotle. He stated that if a person can control the beginning of an action, it will be assumed that this action is carried out based on free will. This basic view influenced other philosophers and allowed the development of the concept over time. In this respect, German philosopher Samuel Freiherr von Pufendorf has a great importance. Pufendorf distinguished the actions according to whether the action itself or its cause is based on free will (Hruschka, 1989). This means the offender who had an influence on the cause of an action shall be liable for the result of it (Hruschka, 1984).

Immanuel Kant has also supported this idea and stated that the action carried out while being irresponsible was, in fact, the result of the former action of impairing culpability. For this reason, he opposed the offender’s usage of being irresponsible as an excuse (Denis & Sensen, 2015). On the contrary, Scottish philosopher Gershom Carmichael refused this idea and rejected holding criminally liable a person who does not have the culpability required for the offence, even though she or he caused this state voluntarily (Hruschka, 2002). According to Carmichael, the only way to hold liable the voluntarily intoxicated offender is punishing her or him for being drunk (Denis & Sensen, 2015). In the current era, the reflection of Carmichael’s idea is the theory of incompatibility which will be explained in the section “Summarization of the Alic Theories in German Criminal Law.”

Definition and Elementary Structures of Alic

Alic is a concept which basically provides a theoretical legal justification to hold an offender criminally liable for the result occurring in cases in which the offender impairs own culpability by free will to attain a state of irresponsibility, and then commits an offence of commission or an offence of omission during the time when she or he is deemed irresponsible (S. Beck, 2018; Dubber & Hörnle, 2014; Finkelstein & Katz, 2008; Fischer & Rehm, 1996; Gropp, 2015; Hruschka, 1996; Jäger, 2007; Kindhäuser, 2017; Krey et al., 2015; Leupold, 2005; Roxin, 1987; Schmidhäuser, 1992). Even if the offender is irresponsible when committing an offence, since she or he impaired the culpability by free will with her or his former action, it is accepted to hold this person criminally liable to prevent her or him from misusing the principles of criminal law. This approach makes the former action of the offender the basis of criminal liability and constitutes an extraordinary imputation method.

Situations falling within the scope of application of alic always take place in two stages. The first stage is the action which causes the voluntary elimination of culpability of the offender and is expressed with the phrase of actio praecedens (former action). In this phase, the offender must know or at least foresee that she or he may violate a legal provision soon while she or he is irresponsible (Heinrich & Wissmann, 2016; Jubert, 1994). The second stage is the unfree action which is performed by the offender after impairing her or his own culpability and violates a norm regulated in the relevant criminal code. This action is called actio subsequens (latter action).

Although the latter action causes the real legal violation, within the framework of the general principles of criminal law, it will not by itself be enough to hold the offender criminally liable and punish her or him, unless alic shall be applied (Jubert, 1994; Sydow, 2002). For this reason, within the context of the concept of alic, actio subsequens is tied to actio praecedens, when the offender was still culpable (Satzger, 2006). This is because the criminal action performed while being considered irresponsible is accepted as the consequence of the former action which is performed at the time of full criminal liability (Fischer & Rehm, 1996; van Sliedregt, 2012). Thus, irresponsibility of the offender accepted as a culpable irresponsibility.

Alic is generally associated with the offences committed under the influence of alcohol or drug intoxication because of the widespread accessibility and usage of these substances (Hettinger, 2001), but it should not be forgotten that an offender can eliminate her or his culpability through many ways (e.g., hypnosis or taking medical pills). So, if the action causes the impairment of culpability and was carried out by free will, no limitations should be imposed in this context. It is also possible for an offender to impair her or his culpability without an active behaviour. If a patient with epilepsy does not take the prescribed medical pills despite knowing that it is possible to commit an offence during a seizure, she or he may be deemed to have chosen a way to impair her or his culpability based on free will, and therefore, if this patient commits an offence during the seizure, there should arguably be criminal liability for the result.

It should also be noted that in addressing the issue of voluntary impairment of culpability, the most important thing is the existence of the free will of the offender. It can be interpreted in such a way that an offender does not have to do the impairment action herself or himself. For example, she or he can ask someone else to inject intoxicants with a syringe to her or his body. Within this possibility, the offender will also be considered as acted freely.

The intoxication rules are deemed notoriously difficult, since strict logic suggests acquitting those who lack mens rea. Yet, people who are so intoxicated as not to know what they are doing pose significant dangers (Williams, 2007). The alic offender who commits an offence after impairing own culpability shall be punished for the sake of justice (Jakobs, 1998). If general criminal liability rules, without reference to alic, are applied, the offender cannot be punished because of being irresponsible during the commitment of the offence, but on the contrary, this situation is unfair, faulty, and inconsistent with criminal law and social order. In addition, a criminal law system should ensure punishment for such circumstances to fulfil its function of protecting legal interests (Jakobs, 1998). Otherwise, the law system will not be able to protect legal interests, the opportunity to be freed from criminal liability will be given to offenders, and one could say that persons will be able to commit offences “based on the authority given by drunkenness.” In this respect, some scholars state that the concept of alic means a presumption against offenders, but in favour of justice (Gropp, 2015).

Nevertheless, it is not possible to say there is a broad consensus among scholars on the acceptance of the application of alic. Some scholars do not support alic, considering it to be contradictory to basic principles of criminal law. This approach will be explained later in the section “The Theory of Incompatibility.”

Types of Alic (Intentional Alic and Negligent Alic)

Views advocating the application of alic make a distinction between negligent alic and intentional alic. The importance of this distinction shows itself in terms of criminal liability and assessment of the offender’s blameworthiness. Indeed, intentional alic rules cannot be applied for a negligent offence, and the opposite is also true. After examining the actions of the offender at T1 and T2, below mentioned combinations will be assessed, and a decision shall be given on the type of alic. If the result points to the negligent alic, but the offender commits a murder, since this offence requires intent, it will not be able to punish this offender.

Intentional alic

If an offender acts intentionally while impairing own culpability and then commits an intentional offence when she or he is irresponsible, it means that there is intentional alic and the offender shall be punished on this basis (Daniels, 2011; Fischer & Rehm, 1996; Jäger, 2007). To be able to apply the intentional alic, the existence of double intent is a necessity, and this necessity means that the offender must have an intent both in the elimination of culpability and the commitment of the offence (Hirsch, 2011; Kindhäuser, 2017; Kühl, 2005; Maurach & Zipf, 1992). It can be concluded that more strict rules are accepted for the application of intentional alic rather than negligent alic (Streng, 2001).

Negligent alic

In the case of negligent alic, the offender commits an offence either intentionally or negligently after intentional or negligent impairment of culpability, except for the possibility of double intent which is explained above (Fischer & Rehm, 1996; Jescheck & Weigend, 1996; Streng, 2000). It means, the negligent alic rules will be applicable in the following possible scenarios: if the offender (a) acts intentionally in the former action but acts negligently in the latter action, or (b) acts negligently in the former action but acts intentionally in the latter action, or (c) acts negligently in both actions.

Alic in Legal Texts

Over time, the common law and penal codes around the world have adopted various approaches in respect to liability for offences committed while in a state of voluntary intoxication. In this regard, alic is a legal concept adopted by many countries and contained in their criminal codes, not expressly by name, but in its essence.

Two basic approaches may be identified from the examination of provisions of different criminal codes related to alic as follows: the first approach adopts punishing drunkenness which is severe enough to cause the elimination of culpability as a separate crime, and the second approach allows punishing the criminal action committed by an irresponsible offender if this offender voluntarily put herself or himself into this position. The German Criminal Code prefers the first approach, whereas the Turkish Criminal Code (TCC) adopts the second one. The relevant legal provisions of these two countries will be examined specifically below, but before that a general framework in the European civil law system will be introduced.

Article 92 of the Italian Criminal Code provides that drunkenness does not eliminate or mitigate culpability, except in a coincidental event or force majeure. If drunkenness is created with the idea of committing an offence or creating an excuse for the commission of the offence, the blameworthiness of the offender will be increased. This provision is consistent with alic, although its name is not explicitly mentioned. The Spanish Criminal Code Article 20 is a more detailed provision in the same direction. The Swiss Criminal Code Article 19 also constitutes an alic provision. In addition, the Swiss Criminal Code has another provision in Article 263 which punishes committing an offence or a misdemeanour while being in a state of diminished responsibility based on voluntary intoxication. The Swiss Military Criminal Code also punishes intoxication in its Article 80. The Danish Criminal Code Article 16, the Polish Criminal Code Article 31, and the second paragraph of the first part of the first section of the Swedish Criminal Code adopt the same approach towards regulating the concept of alic.

On the contrary, in some countries, provisions related to the concept of alic are very narrow, and in some countries alic does not even exist in criminal codes. For instance, Article 4 of Part 3 of the Finnish Criminal Code states that if drunkenness of the offender is particularly heavy, it will be considered in the assessment of criminal liability. It cannot be said that this Article is a uniform provision for alic since all self-induced intoxication situations are not assessed in the same way but must be assessed at the discretion of the judge. The Dutch Criminal Code Article 39 regulates mental illness, self-defence, and other situations that impact criminal liability, but it does not include any provision on voluntary intoxication (Hettinger, 2001). In Dutch doctrine, it is stated that the necessity of punishing a self-induced intoxicated offender, is such an obvious requirement that there is no need to edit any provisions in the criminal codes (van Kalmthout, 1998).

Assessment of Alic in Terms of German Criminal Law

StGB § 323a

Alic is heavily debated in Germany. The reason is that although the philosophical foundations are laid there, a statutory provision regulating the concept still does not exist (Köhler, 1997). The only legal provision that can be associated with the concept of alic is StGB § 323a which punishes full intoxication (vollrausch). According to this provision, if someone is fully intoxicated to the extent that she or he cannot be punished for her or his actions since being irresponsible, it is still possible to punish her or him because of full intoxication (Gropp, 2015; Krey et al., 2015; Kuhn-Päbst, 1984; Küpper & Börner, 2017; Reed et al., 2014; Ziegert, 1987).

StGB § 323a is an omnibus provision (Auffangtatbestand), with the aim of preventing impunity, allowing punishment of an offender for any crimes she or he committed, in cases when her or his criminal conduct constitutes an offence regulated in the criminal code, but not punishable because of not having the culpability required for that offence (Deiters, 2002; Fischer & Rehm, 1996; Küpper & Börner, 2017). According to this Article, the prescribed sentence is up to 5 years in prison or imposition of a judicial fine.

It should be indicated at this point that the Austrian Criminal Code has a similar provision in Article 287 whose heading is more appropriate, rather than StGB, to identify the action which shall be punished. The Austrian Criminal Code punishes “committing a punishable action in a state of intoxication” (Begehung einer mit Strafe bedrohten Handlung im Zustand voller Berauschung), but the German Criminal Code punishes “full intoxication” (Vollrausch). When the heading of StGB § 323a is considered, it looks like StGB punishes intoxication action itself, but this is not correct. For this reason, the heading used in the Austrian Criminal Code is more appropriate to identify the action which needs to be punished.

The two common grounds of alic and StGB § 323a are the existence of a self-induced intoxicated offender and an offence committed by this offender (Duttge, 2011; Fischer & Rehm, 1996; Kuhn-Päbst, 1984; Sydow, 2002). Nevertheless, the main difference between them is foreseeability (Geppert, 2009). The alic offender, to be held criminally liable, must at least foresee, during the conduct of the action resulting in elimination of culpability, the possibility of committing an offence after her or his responsibility is diminished. To punish the offender described in StGB § 323a, however, it is not necessary to prove that she or he foresaw such possibility, as it is presumed that the idea of committing an offence occurs in an offender’s mind after the elimination of culpability (Jakobs, 1991; Kuhn-Päbst, 1984; Stühler, 1999; Sydow, 2002).

Because in Germany there are no statutory provisions related to alic, StGB § 323a can be seen as the only legitimate solution for punishing a self-induced intoxicated offender, but this Article is seriously criticised (Hirsch, 2011; Paeffgen, 1985; Renzikowski, 2002; Schlüchter, 1999; Schmidt, 2013; Sydow, 2002). Scholars claim that there is a need for a different regulation under the law. The 5-year prison sentence provided in the Article is deemed as unacceptable, especially in cases when serious offences are committed (Duttge, 2011; Hruschka, 1997; Salger & Mutzbauer, 1993; Satzger, 2006; Schmidt, 2013; Sydow, 2002).

In Germany, it is a serious flaw that alic does not have a legal basis incorporated in statutory law. This situation leads to an application violating the principle of legality and it is very problematic. In addition, the insufficiency of StGB § 323a in terms of punishment also creates other problems. Therefore, our upcoming recommendations may also provide a remedy for German criminal law.

Summarization of the Alic Theories in German Criminal Law

As the foundations of alic are laid in Germany, to understand this concept thoroughly, German criminal law, the first and the fundamental source, should be studied. There are two basic approaches towards the concept of alic. One of these approaches tries to create a legal basis for alic and ensure its application, while the other one denies combining alic with different legal topics and opposes to its application.

In this framework, the theory of preloading of culpability, the theory of expansion, the theory of material injustice, the theory of exception, and the theory of indirect perpetration all try to offer different legal solutions for ensuring the application of the concept of alic; however, the theory of incompatibility rejects the application of alic. Although these are theories need to be explained in detail, only a summarized explanation within the context of this review shall be given here.

Theory of preloading of culpability (Vorverlagerungstheorie)

In this theory, actions that are qualified as preparatory actions under normal circumstances, are accepted as the beginning of the execution. It is like equating the action of buying a gun with drinking alcohol to murder someone. Thus, by incorporating preparatory actions within the scope of the legal definition of the offence, in other words, in accordance with the culpability which the offender had before self-induced intoxication, this theory tries to provide a legal basis for alic and aims to ensure synchronicity between culpability and criminal action (Baumann et al., 2003; Freund, 2009; Kühl, 2005; Leupold, 2005; Satzger, 2006; Schmidhäuser, 1992; Schmidt, 2013; Streng, 2001; Sydow, 2002).

The theory of preloading of culpability is the theory in which voluntary intoxication and alic show the highest similarity in terms of explaining criminal liability of self-induced intoxicated offenders. As both are based on prior fault of the offender, the connection between T1 (prior fault) and T2 (subsequent crime) is being established in a similar manner. Other theories explained in this part cannot be associated with the Anglo-Saxon approach.

Accordingly, in T1, the offender is faulty, she or he becomes voluntarily intoxicated, but there is not an offence committed yet. Then, in T2, the same offender commits an offence but now she or he does not have the culpability required for the offence. Therefore, the only possibility available is connecting prior fault to subsequent crime action to hold this offender criminally liable. Of course, the prior fault of ingesting intoxicants cannot ground culpability for the latter offence, unless the subsequent risk of criminality was or should have been within the contemplation of the person at the time of ingesting the intoxicants (Dimock, 2011).

Theory of expansion (Ausdehnungstheorie)

This theory argues that the culpability of the offender cannot be fully integrated into the former action. For this reason, it is stated that both the action which leads the offender to impairing culpability and the action performed while being irresponsible should be evaluated as different actions (Hirsch, 1998; Streng, 1994).

In fact, the offender does not start the execution of the criminal offence mentioned in the related Article of the criminal code directly by drinking alcohol in cases where the offender eliminates her or his culpability by alcohol intoxication. In this respect, supporters of this theory make an evaluation based on StGB § 20 which states “the commission of the offence” (bei Begehung der Tat) instead of StGB § 22 which states “the completion of the offence” (Vorstellung von der Tat).

The expression in StGB § 20 is considered as a broader approach and it is stated by some scholars that at the moment which the offender starts acting under the influence of drunkenness, the execution of violating the legal provision will start directly. Thus, since the offender is culpable at that time, there will be no problem in terms of criminal liability (Deiters, 2002; Dubber & Hörnle, 2014; Gropp, 2015; Heinrich & Wissmann, 2016; Hirsch, 2011; Neumann, 1993; Schlüchter, 1999; Schmidt, 2013; Schneider, 2017; Streng, 1994, 2001; Stühler, 1999; Sydow, 2002).

Material injustice theory (materialen Unrechtserfassung)

Ground rules of this theory were established by Eberhard Schmidhäuser. This theory advocates, within the scope of material injustice assessment, that the basis of the punishment is the action which leads to elimination of the offender’s culpability. In this respect, former actions that constitute unlawful behaviours are included in the scope of the injustice (Schmidhäuser, 1992). So, if an action of the offender has an impact on the result, this action can be accepted in the scope of the offence, regardless of when this action was carried out (Neumann, 1993). In a few words, this theory aims to punish the unfair actions of the offender, and since the former action is also unfair, it is suggested to accept this action as the basis of criminal liability.

Theory of exception (Ausnahmetheorie)

Foundations of this theory were set by Joachim Hruschka, and it remains as the minority opinion among scholars. According to this theory, the action which needs to be taken as the basis for the assessment of criminal liability should not be the former action of the offender. It should be the criminal action the offender commits in T2 while she or he does not have the culpability required for the offence. Therefore, alic is basically and simply considered as an exception to the principle of contemporaneity, with the aim of avoiding abuse of legal provisions accepted for protecting innocent persons (Ambos, 1997; Geilen, 1972; Gropp, 2015; Kindhäuser, 2017; Satzger, 2006; Schmidhäuser, 1992; Streng, 1994, 2001; Stühler, 1999; Zabel, 2007).

Theory of indirect perpetration (mittelbare Täterschaft)

According to this theory, to commit an offence, the alic offender uses herself or himself as a tool. In other words, alic constitutes a special type of indirect perpetration where the offender becomes both direct and indirect perpetrators (Baumann et al., 2003; Dold, 2008; Finkelstein & Katz, 2008; Gropp, 2015; Jerouschek, 1999; Kühl, 2005; Schild, 1996; Schlüchter, 1999; Schmidt, 2013; Schneider, 2017). It means that the offender A mentally turns into B after self-induced intoxication, and instead of the usual application of indirect perpetration (e.g., a child or a mentally ill person needing to be used as a tool to commit an offence), the offender uses herself or himself.

All the supporting theories are criticised for different reasons, but the most criticised theory is the theory of indirect perpetration, since indirect perpetration is regulated in the German Criminal Code with a specific provision. In StGB § 25/1 it is clearly provided that for the indirect perpetration, an offence must be committed through another person. So, if this theory is adopted for the application of alic, against the aim of preventing legal violations, another legal violation will occur. In addition, it can be said that the explanation of this theory is too far-fetched (Baumann et al., 2003; Deiters, 2002; Gropp, 2015; Hardtung, 1997; Heinrich & Wissmann, 2016; Hruschka, 2002; Jäger, 2007; Jerouschek, 1999; Schlüchter, 1999; Schmidhäuser, 1992; Schneider, 2017; Streng, 1994, 2001; Sydow, 2002).

Theory of incompatibility (Unvereinbarkeitstheorie)

Arguments against the application of alic have been gathered under this theory which attracts attention to the legal violations occurring in cases where alic is being applied for punishing offenders. However, this theory does not suggest any solutions for the problems which arise if alic is not being applied for the assessment of criminal liability. Dirk Schweinberger, one of the advocates of the theory of incompatibility, defends that alic should not be adopted as a legal concept. His main reason for this idea is that alic is both contrary to StGB § 20 which regulates the principle of contemporaneity and the German Constitution (Grundgesetz) GG § 103/2 which regulates the principle of legality.

Proponents of this theory, in general, suggest that instead of intentional alic and negligent alic, StGB § 323a should be applied for intentional cases and basic negligence provisions should be applied for negligent cases. They also insist that a legal regulation should be made by lawmakers for a real solution to the problems (Daniels, 2011; Satzger, 2006; Schweinberger, 2006).

Assessment of Alic in Terms of Turkish Criminal Law

Provisions on Intoxication in Turkish Legislation

It is possible to say that the variety of provisions related to intoxication in Turkish law allows the opportunity to make significant recommendations for punishing self-induced intoxicated offenders.

Alic has never been explicitly referred to by name neither in the repealed nor the current criminal codes of Turkey, but considerations that reveal the essence of this concept have always been regulated. In the TCC No. 5237, there is an Article among the general provisions which provides the opportunity of punishment for the offenders who commit offences in a state of self-induced intoxication. As the concept of alic has the same aim, this provision can be accepted as a legal basis for the concept of alic.

According to Article 34/2 of TCC, it shall be deemed that a person is fully liable who commits an offence under the influence of alcohol or drugs, which are used voluntarily. This provision shows that voluntary intoxication is not accepted as an excuse, a justification, or a mitigation factor in terms of Turkish criminal law. In contrast, Article 34/1 of TCC provides that if an offender commits an offence in a condition of being unable to perceive the legal meaning and consequences of her or his actions, or if her or his capacity for self-determination was substantially mitigated because of a temporary reason, including usage of alcohol or other intoxicants, she or he shall not be punished. This possibility is deemed as an excuse for an offender to avoid criminal liability. The aim of the provision in Article 34/1 is not to punish a person who does not have the ability to perceive the legal meaning and consequences of her or his action. Yet, an offender who creates the specified conditions voluntarily must not profit from this approach. To address this, the second paragraph of the Article has been adopted. Nevertheless, TCC Article 34/2 seems insufficient to explain the concept of alic in detail, and it is criticised for many aspects. This situation leads to a need of referring to the detailed theories of German criminal law, but at least TCC Article 34/2 provides a legal basis for alic which German criminal law lacks.

TCC Article 34 is not the only provision about intoxication in Turkish legislation. In this regard, the Turkish Military Criminal Code Article 46 states clearly that the punishment shall not be mitigated in cases of voluntary intoxication. Article 35 of the Act on Misdemeanours (Act No. 5326) provides that intoxication shall be classified as a misdemeanour. Accordingly, the person who acts in a manner of drunkenness and violates the peace and tranquillity of the others shall be sentenced to administrative fines by law enforcement officers and kept under control until the effect of drunkenness is over. It should be noted that drunkenness itself is not a misdemeanour in Turkey. Violating peace and tranquillity of the others in a state of drunkenness is the misdemeanour. The third and another important provision about intoxication exists in the Act on Police Duties and Authorities (Act No. 2559). According to Article 13/1-C of this Act, depending upon the situation, police have the authority to safeguard, to banish, or to arrest and carry out the necessary legal process against those who are drunk and disrupt the comfort of the people or disgrace them, those who attack the others in case of drunkenness, those who continue these actions despite warnings, and those who try to attack others and fight.

Suggestions for Amending the TCC

In terms of Turkish criminal law, there are some steps need to be taken for the application of alic. The suggestions, which will be explained in three steps, can also be set as an example for other countries which do not have an alic provision in their criminal codes or have provisions that need to be amended. These steps can be explained under three headings: to repeal, to determine, and to regulate.

To repeal

In this respect, the first step would be to repeal the TCC Article 34/2 which merely links the voluntary elimination of culpability to alcohol or drug use. It is highly restrictive and does not serve the purpose of alic, because of the exclusion of different methods that allow the elimination of culpability. For these reasons, repealing Article 34/2 of TCC will not lead to a serious deficiency.

To determine

The second step to be taken after the repeal of Article 34/2 of TCC would be to determine the offences that a self-induced intoxicated offender can commit. At this point, a similar approach used for the distinction of specific intent–general intent might be adopted, based on Anglo-Saxon law practices. In fact, in the TCC, the number of the offences that can be committed with specific intent is very few, and what is proposed here is instead of adopting the same distinction, the acceptance that it is not possible for an intoxicated offender to commit all the offences regulated in the criminal code, as evidenced by the general experiences of life, even if she or he was self-induced.

For example, certain types of offences, such as bid rigging, fraud by deceiving a person with fraudulent behaviours, falsifying official, or private documents, cannot be committed by an intoxicated offender. As the intoxication has an intense impact on both the physical and psychological status of the offender, the actions that lead to the irresponsibility, make the offender to be in a position which neither physically nor mentally allows her or him to commit most of the actions criminalized. In other words, a person who does not have culpability can only commit a tiny number of offences among all the offences regulated in criminal codes. If the offender can commit all the offences, there would not be a requirement for the application of alic to assess her or his criminal liability. In such a case, general liability rules would come into effect, since the offender’s mental functions were not impaired.

The rationale for making such a distinction between offences for the application of alic stems from the necessity of restriction about the scope of the offences to which alic would be applied. This is because alic should be applied only in exceptional cases with the aim of punishing the actions regulated as offences in criminal codes to ensure the highest level of legal protection for the rights such as right to life, sexual integrity. Thus, the wide application of alic will be abandoned. To know for which offences the principle of contemporaneity will not be applied in punishing the offenders will also improve the acceptability of alic. In this regard, since the fact that negating the principle of contemporaneity will allow punishment of the offenders of serious offences such as murder, rape, adopting this approach will eliminate the criticism of punishing the offenders based on the concept of alic.

It should be noted that a self-induced intoxicated offender does not commit serious offences only. It is recognized that self-induced intoxication is closely associated with the subsequent commission of offences, especially offences of violence and vandalism (Simester et al., 2019), property damage, insult, theft, threat, or obscenity. In fact, these types of offences may be more likely to be committed than other serious offences. According to some research, approximately 50% of violent offences and property offences are committed after intoxication. Although consumption may not be directly linked to the offence, there is often a strong association between the two (Haque & Cumming, 2003). On the contrary, when the sanctions envisaged in the criminal codes are taken into consideration, in cases where an offence requires minor punishment, it is also important to assess whether it would be worth punishing the offender while sacrificing the universal principles of criminal law or not.

From the perspective of a victim or the public, the situation is more tolerable when an offence is committed by an intoxicated offender compared with a fully liable offender. For example, insults of a drunken offender generally do not have the same effect when compared with one of her or his colleagues for Ms./Mr. Victim. This is because this kind of action conducted by an irresponsible person can be identified as expected furores according to general life experiences. Of course, within a legal order, it cannot be expected for any person to put up with the breach of a legally protected right. What is proposed here, for the public or the victim, is not putting up with an offence but relying on provisions of other codes in such cases. Although an offender who is not legally culpable cannot be punished in accordance with the criminal code, her or his illegal action must have a response elsewhere in the legal system.

As explained above, in terms of Turkish law, intoxication is not only contained in the TCC in the Article on voluntary elimination of culpability, but also other acts include important provisions about intoxicated offenders. For this reason, it is advisable not to strictly adhere to the principle of contemporaneity in terms of serious offences and punish the offenders. Despite of this, in terms of minor offences, it should be accepted that the offender has no criminal liability, since there is not any obstacle for police officers to use their powers in Article 13/1-C of the Act on Police Duties and Authorities and then apply Article 35 of the Turkish Law on Misdemeanours to carry out administrative procedures in accordance with the misdemeanour of drunkenness about those offenders.

The distinction which is proposed to be made in terms of handling of offences, does not satisfy the necessity of compatibility with the principle of contemporaneity. However, in the case of strict adherence to this principle, it will inevitably be necessary to reject the application of alic completely. If this is done, the self-induced intoxicated offenders will remain unpunished, and victimization will increase. Because of knowing the possibility of impunity, before committing an offence, an offender may get herself or himself hypnotized or use alcohol or drugs or make similar actions that are included within this scope. Indeed, with some skilful planning, this approach could be used especially by terrorists as a new method of committing offences for which they could legitimately assert a theoretically sound defence.

The principle of contemporaneity, seeking synchronization between culpability and criminal action, serves the purpose of ensuring justice. However, as can be seen from the possibilities explained above, it is still necessary to apply contemporaneity in a different way rather than strictly adhering to this principle in cases where the application of alic is inevitable to provide justice and maintain the legal order. Therefore, when the aim is either ensuring justice or combating impunity and if these aims can only be achieved by not applying the principle of contemporaneity, then what should be done is to make it possible to assess circumstances in a way to allow the application of alic.

All these considerations can also be presented as suggestions for all Continental European countries which adopt the application of alic, especially for Germany. Because, as stated in the relevant part, StGB § 323a is deemed as very problematic and severely criticised by scholars due to its insufficiency about punishment. The Germans can also reach more satisfying results and ensure both proper punishment for offences and also adherence to the principles of criminal law at the highest level, instead of making a choice between applying a concept which is not contained in the criminal code or giving an offender a maximum of only 5 years in prison even when she or he murdered someone.

To regulate

The third step to be taken, after determining for which offences regulated in the criminal code the concept of alic shall be applied, undoubtedly will be to make changes in those Articles in a way that allows the application of alic. Within this scope, amending the Articles of crimes against life, physical integrity, and sexual integrity, as well as torture and torment crimes can be suggested. The statement that the punishment will not be mitigated in case of self-induced intoxication should be added to the Articles in the criminal code in which these offences are regulated. The situation of the designed elimination of culpability and then the commission of the offence should be accepted in the scope of the aggravating factors. In such provisions, intentional and negligent forms of alic shall also be taken into consideration with respect to the relevant offences.

To be clearer, it may be useful to consider proposed statutory amendments. For example, following language could be added to TCC Article 82, which sets forth the factors to be considered in determining whether the offence of intentional killing regulated in TCC Article 81 shall be considered aggravated “ . . . if this crime is committed under the influence of self-induced intoxication . . . .” The same suggestion is valid for negligent killing regulated in TCC Article 85. “In case of self-induced intoxication, the main punishment in this Article shall be increased by half.” In their current positions, these sentences do not exist in related Articles and judges can only apply the general norm in TCC Article 34/2.

By adopting this approach, alic would only be applied in terms of some serious offences determined based on the protected legal interests, so it will be transformed into a real exception by minimizing the violation of the basic principles of the criminal law. Thus, while the offences committed by self-induced intoxicated offenders will not remain unpunished, the objections to the application of alic will be reduced and the acceptability of this concept will be increased.

Need of Reconsideration in Light of Developments in Biotechnology

Until now, the concepts of alic and voluntary intoxication have been studied with similar approaches, but soon the scholars will be forced to study these concepts to cover new emerging situations. The solution to the problems will be explained later, voluntary intoxication needs the varied assessment and flexibility of alic about the ways of elimination of culpability. Thereby, voluntary intoxication will need to change its approach to cover all situations, and as it evolves, understanding of further variants of the basic concept may develop.

It is a fact that medical studies of the brain are important for criminal law. Advances in nanorobotics science, brain pacemakers, and medicine provide remedies for diseases, but on the contrary, these developments create new problems about the assessment of culpability and criminal liability (S. Beck, 2009). It is stated that the deep brain stimulation method which is used especially for Parkinsons and amyotrophic lateral sclerosis (ALS) patients, soon will be used in the treatment of diseases such as depression, obesity, and dementia (S. Beck, 2018; Brown et al., 2016). This expansion of the area of usage of deep brain stimulators is especially important in relation to the concepts of alic and voluntary intoxication, because when the control of the brain pacemaker is left to the patient, she or he may be able to eliminate her or his culpability based on own free will, and this method will be different from intoxication (Hornung & Sixt, 2015). In addition, within those circumstances, the brain pacemaker user has a chance of elimination of culpability by a single action, almost using an electric switch (S. Beck, 2018).

In these kinds of situations, if the patient disables the brain pacemaker intentionally or negligently and then commits an offence in a state of impaired responsibility, alic will come into play and she or he will be held liable for her or his action because of the existence of a will-based situation (S. Beck, 2009). In contrast, if a situation occurs against or outside the patient’s will, she or he shall not be held liable (Brown et al., 2016). Such possibilities will force a reconsideration of voluntary intoxication, since at the present time the scope of the concept is restricted to alcohol and drug intoxication. However, in terms of the scope of application, alic is not limited to a few situations. Its application is possible for any kind of method that can be used to mitigate or eliminate culpability.

It is certainly possible for the concepts of alic and voluntary intoxication to look alike soon, since they each will probably require modification to respond to the needs of criminal law related to criminal liability. In this regard, the differences between them, with respect to application, will provide benefits for each other’s defects (Atalay, 2019).

Conclusion

A self-induced intoxicated offender can mainly come into question in two different circumstances: first one of them is having a wish to be treated with impunity due to the application of the principle of contemporaneity, and the second one is lacking sufficient courage to commit an offence and having the idea to provide some courage through the usage of alcohol or drugs (aka Dutch courage).

Whatever the real reason is, it is necessary to impose sanctions upon an offender who is acting with those thoughts and consequently preventing the impunity if the offender accomplishes her or his goal. Otherwise, this situation will lead to the creation of a structure that would allow an offence to be committed without punishment and even a special way of committing an offence which cannot be accepted within the rule of law. Adherence to the rule of law, cannot permit any person to create the conditions of her or his own criminal defence or a state of irresponsibility and then rely on that.

Voluntary elimination of culpability has demonstrated itself in different ways throughout the historical process. This concept, which was initially evaluated based on sleepiness, was intensively studied with the intoxication of alcohol and drugs. In the following years, there has been a great increase in the diversity of methods and variety of available substances that provide the elimination of culpability. In our age, new possibilities are emerging from advances in biotechnology. For this reason, the subject is now and will continue to be on the agenda, and it would be a reasonable prediction that alic and voluntary intoxication will therefore require ongoing reexamination in the future.

Alic has emerged to solve some problems that cannot be met by general rules, and it does not reflect a general situation in terms of criminal liability. Therefore, it is not expected to find a solution for its contradictory nature to legal principles by applying the general rules. The concept of alic reveals the necessity to make exceptions in terms of other provisions of criminal law to be applied when determining liability. For this reason, a balance needs to be established between the scales of justice in terms of the basic principles of law and the disadvantages arising in case of strict adherence to these principles.

The self-induced intoxicated offender lacks the subjective state of mind required for the offence committed, but a person who has committed a criminal harm while voluntarily intoxicated is deserving of both condemnation and some degree of punishment (Ferguson, 2012). Within the framework of the proposal of this review, a balance can be established by conditioning the basic principles of the law to avoid impunity for some serious offences and benefiting from provisions out of the criminal code to take necessary measures and apply special sanctions for minor offences.

In terms of alic, it is a need to adopt the method of voluntary intoxication in terms of making a distinction between offences based on mens rea to find a solution for problems arise from its application and remove it from the vicious cycle of the debates. In the same way, voluntary intoxication is also in need of adopting the broad assessment of alic in terms of the methods of elimination of culpability. As it seems advisable, and in the future may be necessary that these two concepts be reexamined with a view to understanding how the methods of each might apply to the other, their basic points have been presented and some useful ideas for serving this purpose were suggested.

Footnotes

Acknowledgements

Special thanks to my colleagues, lawyer Phyllis Cox and Dr. İsmail Pamuk, for their very precious help and to the peer reviewers for their constructive recommendations on earlier drafts of this article.

Author’s Note

The author is an Attorney at Law at İstanbul Bar Association. She completed her LLB (2009) at Marmara University Faculty of Law; BPA (2013) at Anadolu University Faculty of Economics; LLM (2013) at Bahçeşehir University Graduate School of Social Sciences; PhD (2018) at Bahçeşehir University Graduate School of Social Sciences.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Ayşe Özge Atalay

References

Ambos

(1997). Der Anfang vom Ende der actio libera in causa? [The beginning of the end of the actio libera in causa?] Neue Juristische Wochenschrift, 50(35), 2296–2298.

Atalay

A. Ö

. (2019). Ceza Hukukunda Actiones Liberae in Causa Kuramı [The theory of Actiones Liberae in Causa in Criminal Law]. On İki Levha.

Baumann

Weber

Mitsch

(2003). Strafrecht Allgemeiner Teil [Criminal Law General Part]. Ernst und Werner Gieseking.

Beck

(2009). Grundlegende Fragen zum rechtlichen Umgang mit der Robotik [Basic questions about the legal handling of robotics]. Juristische Rundschau, 6, 225–230.

Beck

(2018). Neue Konstruktionsmöglichkeiten der actio libera in causa [New construction options for the actio libera in causa]. Zeitschrift für Internationale Strafrechtsdogmatik, 6, 204–211.

Beck

S. M.

Parker

G. E.

(1966). The intoxicated offender-a problem of responsibility. Canadian Bar Review, 44(4), 563–609.

Boettcher

M. J.

(1987). Voluntary intoxication: A defense to specific intent crimes. University of Detroit Law Review, 65, 33–71.

Bohlander

(2009). Principles of German criminal law. Hart Publishing.

Brooks

(2015). Involuntary intoxication: A new six-step procedure. Journal of Criminal Law, 79(2), 138–146.

10.

Brown

Moore

Herron

Thompson

Bonaci

Goering

Chizeck

H. J.

(2016). Personal responsibility in the age of user-controlled neuroprosthetics. In IEEE International Symposium on Ethics in Engineering, Science, and Technology (pp. 1–12). IEEE.

11.

Daly

(1978). Intoxication and crime: A comparative approach. The International & Comparative Law Quarterly, 27(2), 378–412.

12.

Daniels

J. B.

(2011). Die actio libera in causa unter dem Aspekt der Vorverlagerung der Strafbarkeit [The actio libera in causa under the aspect of bringing criminal liability forward]. In Sinn

Gropp

Nagy

(Eds.), Grenzen der Vorverlagerung in einem Tatstrafrecht (pp. 323–347). V and R Unipress.

13.

Deiters

(2002). Die freie Entscheidung zur Tat: Zur Rechtsfigur der actio libera in causa [The free decision to act: The legal figure of actio libera in causa]. In Schneider

Frister

(Eds.), Alkohol und Schuldfähigkeit: Entscheidungshilfen für Ärzte und Juristen (pp. 141–157). Springer.

14.

Denis

Sensen

(2015). Kant’s lectures on ethics. Cambridge University Press.

15.

Dimock

(2011). What are intoxicated offenders liable for? The “intoxication defense” re-examined. Criminal Law and Philosophy, 5, 1–20.

16.

Dix

G. E.

Sharlot

M. M.

(1996). Criminal law-cases and materials. West Publishing.

17.

Dold

(2008). Die actio libera in causa als Sonderfall der mittelbaren Täterschaft [The actio libera in causa as a special kind of indirect perpetration]. Goltdammer’s Archiv für Strafrecht, 155, 427–441.

18.

Dubber

M. D.

Hörnle

(2014). Criminal law: A comparative approach. Oxford University Press.

19.

Duttge

(2011). Der Vollrauschtatbestand de lege lata und de lege ferenda [The full intoxication as de lege lata and de lege ferenda]. In Geisler

Kraatz

Kretschmer

, et al (Eds.), Festschrift für Klaus Geppert zum 70. Geburtstag (pp. 63–79). De Gruyter.

20.

Ferguson

(2012). The intoxication defence: Constitutionally impaired and in need of rehabilitation. The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, 57(6), 111–148.

21.

Finkelstein

Katz

(2008). Contrived defenses and deterrent threats: Two facets of one problem. Ohio State Journal of Criminal Law, 5(2), 479–504.

22.

Fischer

Rehm

(1996). Alcohol consumption and the liability of offenders in the German criminal system. Contemporary Drug Problems, 23(4), 707–729.

23.

Freund

(2009). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. Springer.

24.

Geilen

(1972). Zur Problematik des schuldausschliessenden Affekts [On the problem of the affects that cause irresponsibility]. In Schroeder

F. C.

Zipf

(Eds.), Festschrift für Reinhart Maurach (pp. 173–195). C F Müller.

25.

Geppert

(2009). Die Volltrunkenheit (§ 323 a StGB) [The full intoxication StGB § 323a]. Jura, 31(1), 40–49.

26.

Gropp

(2015). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. Springer.

27.

Hall

(1944). Intoxication and criminal responsibility. Harvard Law Review, 57(7), 1045–1084.

28.

Hallevy

(2015). The matrix of insanity in modern criminal law. Springer.

29.

Haque

Cumming

(2003). Intoxication and legal defences. Advances in Psychiatric Treatment, 9(2), 144–151.

30.

Hardtung

(1997). Die “Rechtsfigur” der actio libera in causa beim strafbaren Führen eines Fahrzeugs und anderen Delikten: Möglichkeiten und Grenzen der Bestrafung [The “legal figure” of actio libera in causa when driving a vehicle and other offences as punishable: possibilities and limits of punishment]. Neue Zeitschrift für Verkehrsrecht, 3, 97–105.

31.

Heinrich

Wissmann

(2016). Die actio libera in causa [The actio libera in causa]. Ad Legendum: Richterrecht-unter Dem Radar Des Gesetzgebers, 2, 146–152.

32.

Hettinger

(1988). Die Actio Libera in Causa: Strafbarkeit Wegen Begehungstat Trotz Schuldunfähigkeit? [The Actio Libera in Causa: Criminal Liability for an Offence despite Irresponsibility?]. Duncker and Humblot.

33.

Hettinger

(2001). Actio libera in causa. In Hettinger

(Ed.), Reform Des Sanktionenrechts, Bd. 1:Alkohol als Strafmilderungsgrund, Vollrausch, Actio Libera in Causa [Reform of Sanctions Law, Vol. 1: Alcohol as a reason for reducing punishment, intoxication, Actio Libera in Causa] (pp. 189–300). Nomos.

34.

Hirsch

H. J.

(1998). Zur actio libera in causa [According to actio libera in causa]. In Eser

(Ed.), Festschrift für Haruo Nishihara zum 70. Geburtstag (pp. 88–104). Nomos.

35.

Hirsch

H. J.

(2011). Zwischenbilanz des langjährigen Meinungsstreits über die actio libera in causa [Interim assessment of the long-standing dispute over the actio libera in causa]. In Geisler

Kraatz

Kretschmer

Schneider

Sowada

(Eds.), estschrift für Klaus Geppert zum 70. Geburtstag (pp. 233–243). De Gruyter.

36.

Hornung

Sixt

(2015). Cyborgs im Gesundheitswesen [Healthcare Cyborgs]. Computer und Recht, 31, 828–838.

37.

Hruschka

(1984). Ordentliche und außerordentliche Zurechnung bei Pufendorf [Ordinary and extraordinary attribution at Pufendorf]. Zeitschrift für die gesamte Strafrechtswissenschaft, 96(3), 661–702.

38.

Hruschka

(1989). Probleme Der Actio Libera in Causa Heute [Problems of Actio Libera in Causa Today]. Juristenzeitung, 44(7), 310–316.

39.

Hruschka

(1996). Die actio libera in causa-speziell bei § 20 StGB mit zwei Vorschlägen für die Gesetzgebung [The actio libera in causa-specifically with § 20 StGB with two legislative proposals]. Juristenzeitung, 51(2), 64–72.

40.

Hruschka

(1997). Die actio libera in causa bei Vorsatztaten und bei Fahrlässigkeitstaten: Zur neuesten rechtsprechung des BGH [The actio libera in causa for acts of intent and negligence: According to the latest case law of the BGH]. Juristenzeitung, 52(1), 22–27.

41.

Hruschka

(2002). “Actio libera in causa” und mittelbare Täterschaft [“Actio libera in causa” and indirect perpetration]. In Dölling

Erb

(Eds.), Festschrift für Karl Heinz Gössel zum 70. Geburtstag (pp. 145–155). CF Müller.

42.

Jäger

(2007). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. CF Müller.

43.

Jakobs

(1991). Strafrecht Allgemeiner Teil Part 1 [General Part of Criminal Law, Part 1]. De Gruyter.

44.

Jakobs

(1998). Die sogenannte actio libera in causa [The so-called actio libera in causa]. In Eser

(Ed.), Festschrift für Haruo Nishihara zum70. Geburtstag (pp. 105–121). Nomos.

45.

Jerouschek

(1999). Koinzidenzprinzip und mittelbar-unmittelbare Täterschaft [Principle of contemporaneity and direct-indirect perpetration]. In Weigend

Küpper

(Eds.), Festschrift für Hans Joachim Hirsch zum 70. Geburtstag (pp. 241–257). De Gruyter.

46.

Jescheck

H. H.

Weigend

(1996). Lehrbuch des Strafrechts Allgemeiner Teil [Textbook of General Part of Criminal Law]. Duncker and Humblot.

47.

Jubert

U. J.

(1994). Actio libera in causa ordentliche oder außerordentliche Zurechnung? [Actio libera in causa ordinary or extraordinary attribution?] Jahrbuch Für Recht Und Ethik / Annual Review of Law and Ethics, 2, 327–338.

48.

Katz

(1999). Responsibility and Consent: The Libertarian’s Problems with Freedom of Contract. Social Philosophy & Policy, 16(2), 94–117.

49.

Kindhäuser

(2017). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. Nomos.

50.

Köhler

(1997). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. Springer.

51.

Krause

F. W.

(1966). Betrachtungen zur actio libera in causa, insbesondere in der Form vorsätzlicher Begehung [Considerations on the actio libera in causa, especially in the form of intentional perpetration]. In Geerds

Naucke

(Eds.), Beiträge zur Gesamten Strafrechtswissenschaft (pp. 305–316). Duncker and Humblot.

52.

Krey

Heinrich

Hellman

(2015). Strafrecht Besonderer Teil, Band 1: Besonderer Teil Ohne Vermögensdelikte [Special Part of Criminal Law, Volume 1: Special section without offences against property]. Kohlhammer.

53.

Kühl

(2005). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. Franz Vahlen.

54.

Kuhn-Päbst

(1984). Die Problematik der Actio Libera in Causa [The Problem of Actio Libera in Causa]. Mannheim.

55.

Küpper

Börner

(2017). Strafrecht Besonderer Teil 1 [Special Part of Criminal Law 1]. Springer.

56.

Leupold

(2005). Die Tathandlung der Reinen Erfolgsdelikte und das Tatbestandsmodell der „Actio Libera in Causa” im Lichte Verfassungsrechtlicher Schranken [Successfully committed crimes and the factual model of the “Actio Libera in Causa” in the light of constitutional barriers]. Duncker and Humblot.

57.

Maurach

Zipf

(1992). Strafrecht Allgemeiner Teil [General Part of Criminal Law]. CF Müller.

58.

McAuley

(1997). The Intoxication Defence in Criminal Law. The Irish Jurist, 32, 243–296.

59.

McCord

(1990). The English and American history of voluntary intoxication to negate mens rea. The Journal of Legal History, 11(3), 372–395.

60.

Murphy

A. A.

(1972). The Defense of Voluntary Intoxication. Law Notes for the General Practitioner, 9(1), 7–12.

61.

Neumann

(1993). Konstruktion und Argument in der neueren Diskussion zur actio libera in causa [Construction and argument in the recent discussion on actio libera in causa]. In Haft

, et al. (Eds.), Festschrift für Arthur Kaufmann zum 70. Geburtstag (pp. 581–593). CF Müller.

62.

Ormerod

Laird

(2017). Smith, Hogan, and Ormerod’s Text, Cases, and Materials on Criminal Law. Oxford University Press.

63.

Paeffgen

H. U.

(1985). Actio libera in causa und § 323 a StGB [Actio libera in Causa and StGB § 323a]. Zeitschrift für die gesamte Strafrechtswissenschaft, 97(3), 513–541.

64.

Reed

Bohlander

Wake

Smith

(2014). General defences in criminal law-domestic and comparative perspectives. Ashgate.

65.

Renzikowski

(2002). Im Labyrinth des Vollrauschtatbestands (§ 323 a StGB) [In the labyrinth of full intoxication offence StGB § 323 a]. In Schneider

Frister

(Eds.), Alkohol und Schuldfähigkeit: Entscheidungshilfen für Ärzte und Juristen (pp. 141–157). Springer.

66.

Robinson

P. H.

(2018). A brief summary and critique of criminal liability rules for intoxicated conduct. Journal of Criminal Law, 82(5), 381–387.

67.

Roxin

(1987). Bemerkungen zur Actio Libera in Causa [Comments on Actiones Libera in Causa]. In Küper

Puppe

Tenckhof

(Eds.), Festschrift für Karl Lackner zum 70. Geburtstag (pp. 307–324). De Gruyter.

68.

Salger

Mutzbauer

(1993). Die actio libera in causa-eine rechtswidrige Rechtsfigur [The actio libera in causa-an illegally legal concept]. Neue Zeitschrift für Strafrecht, 13(12), 561–565.

69.

Satzger

(2006). Dreimal “in causa”-actio libera in causa, omissio libera in causa und actio illicita in causa [Triple “in causa” - ”-actio libera in causa, omissio libera in causa and actio illicita in causa]. Jura, 7, 513–520.

70.

Schild

(1996). Die Straftat als „actio libera in causa”: Bemerkungen zum grundsätzlichen Problem der Zurechnung von Unfreiheit im Strafrecht [The offence as “actio libera in causa”: Comments on the fundamental problem of attribution of lack of freedom in criminal law]. In Schmoller

(Ed.), Festschrift für Otto Triffterer zum 65. Geburtstag (pp. 203–222). Springer.

71.

Schlüchter

(1999). Zur Vorsätzlichen Actio Libera in Causa Bei Erfolgsdelikten [About Intentional Actio Libera in Causa for Successfully Commited Offences]. In Weigend

Küpper

(Eds.), Festschrift für Hans Joachim Hirsch zum 70. Geburtstag (pp. 345–362). De Gruyter.

72.

Schmidhäuser

(1992). Die Actio Libera in Causa: Ein Symptomatisches Problem der Deutschen Strafrechtswissenschaft [The Actio Libera in Causa: A Symptomatic Problem in German Criminal Law]. Vandenhoeck und Ruprecht.

73.

Schmidt

(2013). Strafrecht-Allgemeiner Teil [General Part of Criminal Law]. Rolf Schmidt.

74.

Schneider

W. F.

(2017). Fälle Strafrecht Allgemeiner Teil [Criminal Law Cases General Part]. Alpmann Schmidt.

75.

Schweinberger

(2006). Actio libera in causa: Folgeprobleme des herrschenden Tatbestandsmodells [Actio libera in causa: Consequences of the prevailing factual model]. Juristische Schulung, 6, 507–511.

76.

Simester

A. P.

(2009). Intoxication is never a defence. Criminal Law Review, 1, 3–14.

77.

Simester

A. P.

Spencer

J. R.

Sullivan

G. R.

Virgo

G. J.

(2019). Simester and Sullivan’s criminal law: Theory and doctrine. Oxford: Hart Publishing.

78.

Stannard

J. E.

(1982). The demise of drunkenness. Legal Studies, 2(3), 291–301.

79.

Streng

(1994). Der neue Streit um die “actio libera in causa.” [The new dispute on the “actio libera in causa]. Juristenzeitung, 49(14), 709–714.

80.

Streng

(2000). Actio libera in causa und Vollrauschstrafbarkeit-rechtspolitische Perspektiven [Actio libera in causa and full intoxication offence-perspective of legal policy]. Juristenzeitung, 55(1), 20–27.

81.

Streng

(2001). Actio libera in causa und verminderte Schuldfähigkeit [Actio libera in causa and diminished responsibility]. Juristische Schulung, 6, 540–545.

82.

Stühler

(1999). Die Actio Libera in Causa De Lege Lata und De Lege Ferenda [The Actio Libera in Causa De Lege Lata and De Lege Ferenda]. Ergon.

83.

Sydow

(2002). Die Actio Libera in Causa nach dem Rechtsprechungswandel des Bundesgerichtshofs [Actio Libera in Causa according to the case law of German Federal High Court]. Peter Lang.

84.

van Kalmthout

. (1998). Intoxication and criminal responsibility in Dutch criminal law. European Addiction Research, 4(3), 102–106.

85.

van Sliedregt

. (2012). Individual criminal responsibility in international law. Oxford University Press.

86.

Williams

(2007). Voluntary intoxication, sexual assault and the future of majewski. The Cambridge Law Journal, 66(2), 260–262.

87.

Zabel

(2007). Schuldtypisierung als Begriffsanalyse [Guilt typing as a conceptual analysis]. Duncker and Humblot.

88.

Ziegert

(1987). Vorsatz, Schuld und Vorverschulden [Intent, guilt and pre-fault]. Duncker and Humblot.