Proconstitutional Interpretation of Criminal Law by Szczucki Krzysztof;Sitnik Piotr;

Author:Szczucki, Krzysztof;Sitnik, Piotr;
Language: eng
Format: epub
Publisher: Lexington Books/Fortress Academic

Chapter 4

Common Good and Dignity of the Person as Criteria for Resolving Conflicts between Goods in Criminal Law

Making of a decision with regard to criminalization must be accompanied by a reference to protected goods so as to correctly interpret a criminal offence (its mens rea and actus reus), as well as by resolving conflicts between goods tied to principles expressed in the constitution. State authorities, in order to avoid arbitrariness and excessive discretion, bound by the limits of the law (art. 7 of the Polish Constitution), the principles of primacy and direct application of the constitution (art. 8), and especially the principle of democratic state ruled by law (art. 2), ought to resolve conflicts between goods based on formal and substantive criteria stemming from the constitution, from the optimizing nature of principles, and from concepts explicitly enshrined in the constitution. I have already referred to the conditions governing proportionality as well as to the formal criteria, where I argued that it is only necessary to reconstruct from the legal system substantive criteria which would allow the legislator, and later the executive and the judiciary, to accord priority to their preferred principle so that the constitutional context is realized to the fullest possible extent. Without those criteria the directive of solving conflicts between goods becomes “a directive without directives”; however, it shall be noted that those criteria do not impose a mathematical algorithm to be automatically applied wherever it appears suitable to do so.1

Numerous academic writers and judges have referred to the criteria for resolving conflicts between principles. In its judgment dated 20 March 2006 the Polish Constitutional Court endorsed R. Alexy’s optimizing theory:

First, a conflict of rights and principles at a constitutional level cannot lead to eliminating one of the conflicting rights. A problem to be tackled in such cases is to find some balance between the values protected by the constitution, and outline the scope of protection of each of the opposing rights. Second, where rights are in conflict, general axiological preferences are significant; those may be decoded by analysing the values directional in nature or supreme according to the general principles of the constitution. Two fundamental values should be taken into account: common good (art. 1 of the Constitution) and dignity of the person (art. 30).2

Therefore, common good and human dignity should serve as the criteria for resolving conflicts between rights, or, to borrow R. Alexy’s terminology, “between principles.” They should be, as the Court noted, “directional or supreme,” thus capable of hierarchizing, at least a casu ad casum, principles and goods connected therewith. The exceptional potential of dignity for the purposes of resolving conflicts between principles is confirmed by its recognition as such also in American jurisprudence. This occurred even though the principle of dignity is not explicitly enshrined in the Constitution of the United States, and understanding thereof deviates from the understanding adopted in Germany and Poland.3

Common good and dignity constitute “directional or supreme” principles, principles of principles or “meta-principles” sui generis. Recognition of two directional

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