Sanctioned Norm in Criminal Law: An Outline of the Concept

Abstract

The article is the first part of an analysis of the normative structure of crime within Polish criminal law. It discusses the structure of the sanctioned norm – the first of the hierarchical norms that co-create the normative phenomenon of crime. The paper demonstrates that the sanctioned norm consists of two components: a fixed statutory component in the form of the explicitly defined statutory elements of the type of a prohibited act; and a relative applicative component in the form of a negligence condition based on safety rules reconstructed in concreto according to the specifics of each case. Negligence is a twin figure of the general clause, differing only in that it is not explicitly stated in the criminal statute. Therefore, the sanctioned norm cannot be established in abstracto, independently of the specifics of a particular case. Furthermore, it is not a legal norm because it is always supplemented by extralegal criteria relating to the nature of the characteristic behaviour in question. The paper also explains that no subjective prerequisites of criminal liability belong to the set of elements of a prohibited act, as they lack distinctive features that would permit their inclusion. Objectively identical behaviours can be voluntary or involuntary, intentional or unintentional, blameworthy or non-blameworthy. Consequently, it has been established that the sanctioned norm is neither a legal norm nor a norm of conduct; it can only be reconstructed in concreto and is objective.