Material Feature of the Crime – a Valid Concept or a Socialist Taint?

Abstract

The social dangerousness of an act, as a substantive element of a crime, constitutes the meaning of a criminal prohibition and describes the negative social evaluation of a given behavior. Although, in general, its presence as an element of the dogmatic structure of the crime is positively evaluated, there are some critical voices of this presence. Opponents of including social dangerousness as an element of the structure of a crime justify their position mainly by the negative history of this institution, the weakening of the protective function of the criminal law, the limitation of the analysis of the procedural body and the lack of consideration of other factors in the assessment of criminal responsibility. However, it seems that the historical problems have been eliminated by the introduction of statutory quantifiers that allow the examination of the degree of social dangerousness, as well as the protective function of the criminal law is not compromised, since acts with less than negligible social harmfulness do not harm the goods protected by law in such a significant way as to require state protection. In addition, the limitation of taking into account other circumstances closely related to the offender, rather than to the act, reduces the possibility of abuse by the trial authority. Despite the absence of the presence of social dangerousness as an element of the dogmatic structure of the crime in other European countries, the material feature of the crime affects the rationalization of criminal responsibility indirectly, so it is somehow present there anyway. Indeed, evil remains an immanent part of the crime, regardless of whether it is decreed explicitly as a component of the crime. Taking into account the functions of criminal law, it seems that, despite the doubts described in the article, it is worth preserving social dangerousness as an element of the structure of the crime, not replacing it with the introduction of full procedural opportunism, involving the procedural authorities’ assessment of the desirability of criminal prosecution.